NC Family Staff | September 2, 2022 | SHARE: 
The Supreme Court of the United States (SCOTUS) has agreed to take up important North Carolina cases that could have far-reaching implications, not just in North Carolina but across the country.
Dr. Andy Jackson is the Director of the Civitas Center for Public Integrity at the John Locke Foundation, where he specializes in election policy. He joins us on this week’s Family Policy Matters radio show and podcast to walk us through the cases and their possible impact on North Carolina, its constituents, and the rest of the country.
The first case, Dr. Jackson explains, “is on the question of whether or not the state legislature can intervene in the [voter ID] case as defendants.” SCOTUS ruled 8-2 that the legislature could intervene, which opened the door for the case to proceed with “lawyers hired by the state legislature to defend the case” in what is likely to be several months of litigation.
The second case the Court agreed to hear is Moore v. Harper, which, as Dr. Jackson explains, addresses “the constitutional question about whether or not the state legislature has the full authority under the Constitution to draw districts, or is that shared with the court system.” Dr. Jackson goes on to say that this ruling has the potential to affect every state in the Union “depending on how broadly the Supreme Court applies the case. […] Are they going to narrowly define that to just redistricting or are they going to broadly apply that to all election laws?”
Dr. Jackson underscores the importance of the Judicial Branch in each state, as a co-equal branch of government, and how North Carolina’s judicial races this year “will determine which party is in control of that entire branch.” Looking to the future, his expectation is that “we are going to have some final decisions on political gerrymandering claims and voter ID before 2024.”
Tune in to Family Policy Matters this week to hear Dr. Andy Jackson walk us through these important North Carolina cases. There are several ways you can listen, or read the transcript!
TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. We’ve talked quite a bit on this show about the U.S. Supreme Court’s remarkable session that recently concluded with the landmark overruling of Roe v. Wade. But the High Court also ruled on an important North Carolina-specific case and agreed to take up a separate North Carolina case that could have far-reaching and long-lasting implications for elections not just in North Carolina but across the country.
Dr. Andy Jackson, Director of the Civitas Center for Public Integrity at the John Locke Foundation, focuses on government compliance with the law, especially regarding election policy. Dr. Andy Jackson, welcome back to Family Policy Matters.
DR. ANDY JACKSON: Thanks for having me.
TRACI DEVETTE GRIGGS: The U.S. Supreme Court weighed in on North Carolina’s continuing litigation related to voter ID in our state. What did their 8-1 decision in this case decide?
DR. ANDY JACKSON: It’s important to remember that this is not a decision on the underlying case about whether or not North Carolina’s voter ID law violates federal voting rights, the federal Voting Rights Act. This is on the question of whether or not the state legislature can intervene in the case as defendants, and they ruled 8-1 that the legislature could. This is going to allow the case to proceed with lawyers hired by the state legislature defending this case from here on.
TRACI DEVETTE GRIGGS: So this didn’t change the status of voter ID, but what is that then — what is the status in North Carolina?
DR. ANDY JACKSON: Well, the status of North Carolina is that it’s being held up not just in federal court but also in North Carolina courts, and it looks like we still have at least several months of litigation ahead of us on those cases.
TRACI DEVETTE GRIGGS: Does the U.S. Supreme Court’s ruling in this case have implications outside of this particular voter ID case?
DR. ANDY JACKSON: It does because there’s been an ongoing issue, first, going back a few years when Roy Cooper, who is now the governor, was the attorney general for North Carolina and now with Josh Stein. There’s been a concern by members of the General Assembly that the attorney general has not been vigorously defending laws that the legislature passes. And the legislature, of course, is a co-equal branch of government, and they have an interest in making sure that laws they pass are defended. And there have been times when Stein has had political disagreements with the court. Perhaps most famous recently is his refusal to try to seek to reinstate North Carolina’s abortion law that the General Assembly passed a few years back. Also, he gave advice to the North Carolina State Board of Elections to enter into an agreement with Democratic attorney Mark Elias to alter election laws in the 2020 race.
And so with this kind of history, the General Assembly wants to be able to defend laws that they don’t believe Attorney General Stein or the lawyers that are working for him have their heart in defending. And this is similar to legislation that got passed in the state budget in 2021 so that they are allowed to defend laws in state court. This ruling extends a similar protection for the legislature in federal court.
TRACI DEVETTE GRIGGS: I’ve always found that to be interesting that the attorney general, apparently, can pick and choose which of the state laws he wants to defend. Is that part of his job description, or is he doing something that he is really not supposed to be doing?
DR. ANDY JACKSON: Well, they do have some leeway. They are independently elected, and the executive branch is, of course, a co-equal branch of government. We will say at best it’s unfortunate that he is kind of picking and choosing these cases for what appears to be political rather than legal reasons. It would be hard for the state legislature to remove him for that, but this is kind of the next best thing. They are, essentially, able to sideline him from these cases if they believe that he is not really either up to the task or willing to do the task of defending laws.
TRACI DEVETTE GRIGGS: So this provides a workaround for the legislature.
DR. ANDY JACKSON: Yes.
TRACI DEVETTE GRIGGS: Let’s talk about the other case, Moore v. Harper, which the Court agreed to hear. What is the question being presented in that case?
DR. ANDY JACKSON: That one is a redistricting case, and that’s a really interesting one because what you’ve got going on there is a whole constitutional question about whether or not the state legislature has the full authority under the Constitution to draw districts or is that shared with the court system. As we may recall, the North Carolina Supreme Court overturned all of North Carolina’s maps: State House, State Senate — state legislature. The state legislature redrew the State General Assembly maps, but the Court itself drew the congressional map. So it wasn’t actually drawn by the General Assembly.
The question here comes from the “Elections Clause” of the Constitution, which says that the manner, time, and place of elections is done by state legislatures. That’s specified in the Constitution. So the question is are there bodies other than state legislatures that are authorized to influence the process or even draw maps, and that’s what the Supreme Court is going to have to decide after it hears that case this October.
TRACI DEVETTE GRIGGS: This case, of course, is specific to redistricting here in North Carolina, but could it have implications that would affect other states?
DR. ANDY JACKSON: It depends on how broadly the Supreme Court applies the case. First of all, if they find for the legislature and say, yes, this is something that the U.S. Constitution reserves for the state legislature, are they going to narrowly define that to just redistricting or are they going to broadly apply that to all election laws?
And so this could potentially affect every state in the Union because this would essentially say that as far as federal elections go, not state elections, not state legislative, county commissioner, but just federal elections, only the state legislature can set regulations, rules, supervised by the U.S. Supreme Court, of course, for federal elections. And this is somewhat similar to a case I’m going to tell you, U.S. Term Limits vs. Thornton, from 1995, when the U.S. Supreme Court said that states could not add new limits beyond what the Constitution says on people serving in Congress. This was a case where the State of Washington tried to set 12-year term limits for Congress. The Supreme Court said, no, you can’t do that because the terms are set by Congress, and states aren’t allowed to set different rules and regulations.
This would be somewhat similar in saying that the Constitution specifies that a state legislature that sets regulations for federal elections can’t be overturned by Congress and supervised by the Supreme Court so that other bodies, aside from those three, really don’t have a say in the process.
TRACI DEVETTE GRIGGS: I love examples like this because people put so much emphasis on what happens on the federal level, and to see that states — of course, I would be interested in this because I work at a state public policy entity — but that what states do on the state level can have that bubble-up effect, can’t it? I mean it can affect federal laws and policies and really have sweeping affects as well.
DR. ANDY JACKSON: It certainly can, and we’ve seen that in the latest round of redistricting where in numerous states, not just North Carolina, it was state judiciaries that were striking down or allowing, depending on the state, redistricting that was drawn by the various state legislatures.
So, certainly, states have a big impact on the inputs into our democracy.
TRACI DEVETTE GRIGGS: Why is redistricting so contentious in North Carolina. It seems that this is a perennial issue that keeps coming back. Is it like this in all states?
DR. ANDY JACKSON: It’s not like this in all states. North Carolina is maybe not unique, but we are unusual. I’ve read that North Carolina and Texas are the two most litigious states for redistricting. As a matter of fact, in North Carolina, every ten years after the census the legislature draws State House, State Senate, and Congressional maps, and we haven’t had a set of three maps that have survived the entire decade since, I believe, 1981. It was the last time a set of maps were passed where all three survived the entire decade. Every decade, maps drawn by Republicans, maps drawn by Democrats, at least one of those maps has been struck down.
So that tells you one reason that you have so much redistricting litigation in North Carolina is that it’s so successful, and if you’re more likely to win a case, you’re more likely to pursue the case. And so I don’t see that changing. We’ve started a whole new decade with three new maps, and I would imagine we might see more in the future. We still have the North Carolina Supreme Court getting ready to hear an extension of the case that overturned the congressional map.
TRACI DEVETTE GRIGGS: So judges do matter. I think that’s another theme that we bring up quite a bit. Sometimes it’s an afterthought when people look at their ballots, but these judges are really important in our state.
DR. ANDY JACKSON: Yes. It’s an entirely co-equal branch of government, and so you have two elections this year that will determine which party is in control of that entire branch.
TRACI DEVETTE GRIGGS: So do we have any indication from the U.S. Supreme Court how they may be inclined to rule on some of these issues?
DR. ANDY JACKSON: This is really interesting. We do know that they have what they call the rule of four for bringing up cases, writs of cert, as they say, and so we know that there’s at least four justices that think there is a compelling constitutional issue here. They don’t have to sign their names on that. And we also know that there are three justices on record as saying that state legislatures, not state courts, have the authority to make rules governing federal elections: Samuel Alito, Clarence Thomas, Neil Gorsuch. I would say that those are almost definitely votes in support of that, and then we can probably assume that the three progressive justices, Kagan, Sotomayor, and Brown Jackson, are going to be ruling against. And probably another against is Chief Justice John Roberts because he wrote in Rucho v. Common Cause, a redistricting case in 2019, that state courts, and not federal, were the proper venue for claims of political gerrymandering. So that leaves two justices that we’re kind of unsure of: Brett Kavanaugh and Amy Coney Barrett. So this could be a very close decision.
TRACI DEVETTE GRIGGS: If they rule in favor of the North Carolina legislature, do we hope that it could calm some of this litigation?
DR. ANDY JACKSON: Basically, for political gerrymandering it would eliminate lawsuits over political gerrymandering, not racial gerrymandering, which is a whole separate issue, but gerrymandering on claims that it is discriminatory based on political party. We already had a ruling in the Rucho v. Common Cause that I just mentioned that said that federal courts are not a proper venue for that. If state courts are also cut out of this process, then federal — just federal redistricting, not for the state legislature — but federal redistricting would essentially be out of the purview for either state or federal courts. And so that would be a major change that would eliminate a whole avenue of redistricting legislation. We would certainly still see a lot of court cases for the state districts, but for federal districts it would really slow things down if not eliminate them.
There is a back door for this, though. There is a theory that all political gerrymandering is de facto racial gerrymandering because of the voting patterns by race. Blacks tend to vote Democratic. Whites are a little bit more likely to vote Republican. So under that theory, you might see a whole new slew of racial gerrymandering lawsuits in both state and federal courts.
TRACI DEVETTE GRIGGS: Any chance at all that these cases are going to affect the elections this year or even the 2024 election?
DR. ANDY JACKSON: They’re not going to affect the elections this year because they’re in the pipeline. They have this thing called the Purcell principle in federal courts, which basically says that once things are going, federal courts should avoid intervening. And so none of these cases are going to be decided in time for that principle not to apply. Almost all of these cases should be resolved before the 2024 election, however, so I would expect that we are going to have some final decisions on political gerrymandering claims and voter ID before 2024.
TRACI DEVETTE GRIGGS: Well, we’re just about out of time for this week, but before we go, Dr. Andy Jackson, where can our listeners go to follow developments related to these cases and follow your work?
DR. ANDY JACKSON: There’s a couple of places. I recommend a blog called SCOTUSblog. They follow all of the court cases. For North Carolina, on these issues and others, you can also read my writing and the writing of my colleague, Jim Sterling, at the John Locke Foundation. That is at JohnLocke.org.
TRACI DEVETTE GRIGGS: Dr. Andy Jackson, Director of the Civitas Center for Public Integrity at the John Locke Foundation, thanks so much for being with us today on Family Policy Matters.
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