The U.S. Supreme Court’s decision in Rucho v. Common Cause (2019) shut the door to federal constitutional challenges to partisan gerrymandering of congressional and state legislative districts. At that time, though, the Court encouraged those challenging the troubling problem of gerrymandering to look to solutions under state constitutions and laws. In 2021, the North Carolina General Assembly passed a redistricting law for its congressional seats following the 2020 Census that reflected an extreme partisan gerrymander favoring the Republican Party. Following the Rucho Court’s recommendation that challenges to partisan gerrymandering be based on state law, multiple organizations and individuals challenged the plan in state court, citing the state constitution’s guarantees of free elections and equal protection. The North Carolina Supreme Court held that the plan violated the state’s constitution, and proceedings to devise an appropriate remedial plan followed after the Assembly failed to enact a new plan that satisfied state constitutional requirements.
The Republican leaders of the General Assembly sought review of the decision in the U.S. Supreme Court, arguing that under the U.S. Constitution’s Elections Clause—which imposes on state legislatures the duty to enact laws regulating the time, place, and manner of congressional elections—state courts may not strike down legislative redistricting plans based on state constitutions. The defenders of the gerrymandered districts argue that the Elections Clause grants state legislatures total independence from state constitutions and courts in regulating the manner of holding elections, including congressional districting. The Supreme Court granted review.
Public Citizen filed an amicus brief supporting the individuals and organizations who prevailed below in challenging the gerrymandered districts, as well as the State of North Carolina and its Board of Elections, which support the North Carolina Supreme Court’s decision striking down the Assembly’s redistricting plan. The brief explains that the Assembly Republicans’ “independent state legislature” theory that state legislatures performing their duty under the Elections Clause share the federal government’s immunity from state constitutional constraints is unfounded in precedent and logic, and that ordinary preemption principles under the Constitution’s Supremacy Clause foreclose any argument that the Elections Clause displaces state constitutional mandates that do not conflict with the Clause’s requirement that the manner of conducting congressional elections be determined in the first instance by legislation.