Supreme Court hears arguments on voting rights case

By Tierney Sneed, Sarah Fortinsky, Dan Berman and Meg Wagner, CNN

Updated 6:14 p.m. ET, December 7, 2022
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1:12 p.m. ET, December 7, 2022

Chief Justice John Roberts eyes an offramp and a way to avoid making major constitutional changes

From CNN's Tierney Sneed

Chief Justice John Roberts asked a question that hinted that he was looking for an offramp that would allow the Supreme Court to rule in the GOP legislature's favor without blessing the full independent state legislature theory.

Roberts — who is seen as more of an institutionalist than the five justices to his right — has been known in recent years to look for narrow ways out of a case that avoid making major changes to case law. For instance, in the blockbuster abortion case last term, Roberts said that he would vote to uphold Mississippi's 15-week abortion ban but he disagreed with the majority's move to reverse the Roe precedent outright.

Roberts on Wednesday asked whether the problem in how the North Carolina state courts handled the legislature's map is that the courts were relying on a vague "free elections" standard in the state constitution, rather than a specific limit on partisan gerrymandering.

"If they had a more precise articulation of what the limits were that they were going to apply, whether it's going to be a particular percentage of gerrymandering, departure or something more substantive, is it the problem that they're just interpreting something that gives them free rein or is that not a consideration?" Roberts asked.

David Thompson, who is representing the North Carolina Republicans, said that is their "back up" problem with what the state courts did in their case, but he held onto the idea state constitutions could not impose a substantive limit on what election rules a legislature can enact.

Justice Sonia Sotomayor followed up later in the hearing with a point that seemed to push back at the idea that the state courts erred by using a vaguely worded "free elections" clause in the state constitution to strike down the congressional map.

She brought up the somewhat ambiguous language in the US Constitution and federal statute that federal courts interpret all the time. She asked Thompson how what the North Carolina courts did was any different than what federal courts typically do.

12:21 p.m. ET, December 7, 2022

SCOTUS has 3 members who helped George W. Bush's 2000 election win

From CNN's Dan Berman and Joan Biskupic

Former President George W. Bush and former first lady Laura Bush appear at a campaign rally in Chattanooga, Tennessee, in 2000.
Former President George W. Bush and former first lady Laura Bush appear at a campaign rally in Chattanooga, Tennessee, in 2000. (Brooks Kraft LLC/Sygma/Getty Images)

As the 2000 Supreme Court case of Bush v. Gore — which handed George W. Bush the presidential election — comes up in Wednesday's oral arguments, it's worth noting that three of the current justices helped Bush in some manner when they were in private practice.

Chief Justice John Roberts flew to Florida in November 2000 to assist Bush’s legal team. He helped prepare the lawyer who presented Bush’s case to the Florida state Supreme Court and offered advice throughout.

Justice Brett Kavanaugh helped the Bush legal team on efforts related to recounts in Volusia County, Florida.

In an interview with CNN in Washington after the justices had heard oral arguments but before they ruled, Kavanaugh said the justices were concerned about “the arbitrary, standardless nature of the recount process in Florida.” He dismissed a question about political differences, saying, “I don’t think the justices care if it’s Bush v. Gore, or if it were Gore v. Bush. What they care about is how to interpret the Constitution and what are the enduring values that are going to stand a generation from now.”

Justice Amy Coney Barrett also went to Florida during the recount controversy. She told the Senate Judiciary Committee the law firm where she was working represented Bush and she visited Florida for a week, but did not continue on the case after she returned to Washington.

Of the nine current justices, only Justice Clarence Thomas remains on the bench. He voted with the 5-4 majority to end the Florida recount and hand Bush the presidency.

Watch Kavanaugh talk Bush v. Gore case in 2000:

1:10 p.m. ET, December 7, 2022

NC legislature's opponents are now arguing

From CNN's Tierney Sneed

Neal Katyal speaks to members of the media outside the Supreme Court in 2018.
Neal Katyal speaks to members of the media outside the Supreme Court in 2018. (Andrew Harnik/File/AP)

Neal Katyal, a former acting US solicitor general who is representing some of the legislature's opponents, is arguing now. He is representing the voting rights groups that challenged in state court the initial congressional map the North Carolina Republicans drew.

"I'm not sure I've ever come across a theory in this court that would invalidate more state constitutional clauses as being federally unconstitutional — hundreds of them, from the founding to today," he told the Supreme Court.
1:15 p.m. ET, December 7, 2022

Elena Kagan brings up recent cases where SCOTUS seemed to sanction state courts interpreting election rules

From CNN's Tierney Sneed

Justice Elena Kagan stands during a group photo at the Supreme Court in 2021.
Justice Elena Kagan stands during a group photo at the Supreme Court in 2021. (Erin Schaff/The New York Times/AP/Pool)

Justice Elena Kagan brought up three US Supreme Court cases where the majority seemed to sanction the idea that entities other than the state legislature can have a role to play in setting election rules.

One of those cases was an Arizona case where the court upheld the state's independent redistricting commission. Another was the recent partisan redistricting case, where the Supreme Court conservative majority said that federal courts had no role in policing extreme partisan gerrymanders, with an opinion that nodded to the ability of state constitutions to limit such gerrymanders.

"In all recent cases, we've said, 'Of course, state courts applying state constitutions typically constrain state legislatures, when they redistrict, when they enact election laws,'" the liberal justice said.

David Thompson, who is representing the North Carolina Republicans seeking to reinstate their congressional map, tried to argue that the question before the court now was not directly in front of the court for those previous questions. Kagan shot back that the state legislature has been relying on concurrences from a Supreme Court case concerning the 2000 election, where the court also wasn't asked to review the independent state legislature question directly.

"I appreciate the fact that this issue was not the one before us in each of those three, just as it wasn't in the case that you mentioned to me, that started off my quoting other things," Kagan said. "If you're going to quote one at me, I'm going to quote three at you."
1:36 p.m. ET, December 7, 2022

Amy Coney Barrett shows some skepticism for GOP arguments

From CNN's Tierney Sneed

Justice Amy Coney Barrett testifies in front of the Senate Judiciary Committee in 2020.
Justice Amy Coney Barrett testifies in front of the Senate Judiciary Committee in 2020. (Stefani Reynolds/Pool/Getty Images)

In some of their briefings, the Republican lawmakers have suggested there's a distinction between procedural checks on a legislature's interpretation of election rules versus substantive checks.

Justice Amy Coney Barrett asked where the legislature is deriving that distinction — if not from the constitution itself.

Her question suggests some skepticism of that distinction. Barrett's views on the independent state legislature theory are a mystery, as she was not on the high court during the pre-2020 election litigation when the issue came up.

Barrett went on to question how the lawmakers are framing the purpose of the Election Clause, the US constitutional provision that North Carolina state legislature says gives them the authority to enact election rules that cannot be struck by state courts under the state constitution. The Election Clause also says that Congress can write election rules for federal congressional elections.

Barrett told Thompson says she didn't read that clause has delegating power to the states, but perhaps rather establishing that Congress had the ability to override state laws.

1:18 p.m. ET, December 7, 2022

John Roberts asks lawmakers' lawyer about what role of governor means for their arguments

From CNN's Tierney Sneed

Chief Justice John Roberts arrives in the House of Representatives chamber in March.
Chief Justice John Roberts arrives in the House of Representatives chamber in March. (Julia Nikhinson/Pool/AP)

Chief Justice John Roberts, a potential swing vote in the case that could determine how federal elections are run in the future, asked the attorney for the GOP North Carolina legislature a question testing the limits of the lawmakers' theory about the independent state legislature doctrine. 

He asked about the governor's ability to veto measures passed out of the legislature and got Thompson to concede that the governor retains that authority to veto election legislation.

Roberts went on to suggest that concession might undermine their case. The chief justice has not spoken out on his thoughts of the "independent state legislature" theory, unlike four of his fellow conservatives.

11:55 a.m. ET, December 7, 2022

Oral arguments in Moore v. Harper begin

Tierney Sneed

People wait in line outside the US Supreme Court to hear oral arguments in the Moore v. Harper case on December 7.
People wait in line outside the US Supreme Court to hear oral arguments in the Moore v. Harper case on December 7. (Drew Angerer/Getty Images)

The Supreme Court has begun its hearing in the Moore v. Harper case.

Kicking off the arguments is attorney David Thompson, who is representing the North Carolina Republicans seeking to reinstate their congressional map.

9:56 a.m. ET, December 7, 2022

What is the "independent state legislature" theory?

From CNN's Tierney Sneed

(National Archives/AP)
(National Archives/AP)

The "independent state legislature" theory the Supreme Court is considering Wednesday is an interpretation that posits that state legislatures should have primary — and perhaps exclusive — authority for setting the rules of federal elections, unless Congress has weighed in.

It stems from language in the US Constitution that says the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature.”   

Proponents of the theory say that, under the doctrine, federal courts still have a role to play to ensure federal law and the US constitution are not violated by a state's election rules.

Voting rights groups say that should the Supreme Court adopt it, state legislatures would enjoy absolute authority without judicial oversight, even perhaps choosing their desired election winners.

One example is how state courts — while citing their state constitutions — issued rulings in 2020 that made mail voting more accessible for the Covid-19 pandemic. It also raises questions about the discretion state executive branch officials and local authorities have in carrying out state election law. 

Versions of the "independent state legislature" doctrine manifested in arguments made in 2020 election lawsuits, particularly in cases where conservatives challenged the counting of votes that were cast under election rules set out by state courts for the pandemic, rather than by the legislature. 

During that litigation, several members of the US Supreme Court's conservative wing signaled their openness to the theory. But the high court did not take up a case that would give the justices a full review of the arguments until the North Carolina Republicans brought the redistricting case to the justices.

Read more here.

9:46 a.m. ET, December 7, 2022

What conservative justices have said about interpreting the constitution on voting

From CNN's Ariane de Vogue

The US Supreme Court justices pose for a group portrait in October. In the front row, from left, are Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan. Behind them, from left, are Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.
The US Supreme Court justices pose for a group portrait in October. In the front row, from left, are Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan. Behind them, from left, are Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson. (Evelyn Hockstein/Reuters)

Earlier this year, a 5-4 Supreme Court ruled against the GOP challengers and declined to block the court-ordered map for new congressional districts on an emergency basis.

At the time, Justice Samuel Alito, writing for Justices Clarence Thomas and Neil Gorsuch, said that he thought the lawmakers in the case will ultimately prevail.  

"If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections," Alito wrote.

Critically, Justice Brett Kavanaugh said that he agreed with Alito that the underlying Elections Clause questions were important. 

"The issue is almost certain to keep arising until this Court definitively resolves it," Kavanaugh wrote. Yet he ultimately voted against the lawmakers cautioning that it was too close to the impending midterms to change the map.