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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6:14 p.m. ET, December 7, 2022

The big picture from today's oral arguments: Conservatives seemed open to GOP state lawmakers' arguments 

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. (Eric Lee/Bloomberg/Getty Images)

The Supreme Court seemed open to arguments made by North Carolina Republican lawmakers, suggesting that state courts and other state entities have a more limited role in reviewing election rules established by state legislatures when it comes to federal elections.

Although the conservative justices appeared to embrace versions of a long-dormant legal theory that would allow only some constraints on state legislatures — it was unclear what the exact contours of the court’s final decision would be.

After three hours of arguments it appeared that Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett could ultimately determine the breadth of the decision and how elections will change going forward. At one point, Roberts seemed to suggest a middle ground position.

He suggested that if a state supreme court is crystal clear with concrete provisions on what is allowed, a legislature would have to adhere to those state constitutional limits. Other justices floated other possible standards.

For their part, liberals told a lawyer for the lawmakers that his position in the case would upend electoral politics, cause chaos on the ground and embolden state legislatures to act without judicial oversight.

“This is a proposal that gets rid of the normal checks and balances,” Justice Elena Kagan said at one point “at exactly the time they are needed the most.” She told him “our precedent gives you lots of problems. “ Justice Ketanji Brown Jackson told the lawyer: “is it your argument that the state constitutions” has no role?

And Justice Sonia Sotomayor charged the lawyer with “rewriting history.”

6:14 p.m. ET, December 7, 2022

Key takeaways from Moore v. Harper, the historic Supreme Court arguments on election rules

From CNN's Tierney Sneed and Ariane de Vogue

Arguments in the Supreme Court’s blockbuster election rules case played out for more than three hours on Wednesday as the justices examined claims from the North Carolina GOP legislature, which argues that state constitutions and state courts have little or no authority to impose limits on how state legislatures craft their rules for federal elections.

The controversial “independent state legislature” theory is being used by Republican lawmakers to argue that state courts could not redraw the congressional map the legislature sought to enact in 2021.

A version of theory was promoted by allies of former President Donald Trump during their attempts to overturn the 2020 presidential election.

Wednesday’s case arises out of dispute over whether the congressional map was a partisan gerrymander so extreme that it ran afoul of the state’s constitution. But it has implications for all kinds of election rules and the ability of state courts to interpret them.

Here are key takeaways from Wednesday's oral arguments:

Key swing votes appear skeptical of the maximal version of the Republicans’ arguments: North Carolina’s GOP legislature appears to be short of five votes it would need to get a Supreme Court ruling that adopted the most aggressive version of their arguments.

Justices Brett Kavanaugh and Amy Coney Barrett asked questions suggesting skepticism of the maximal version of the independent state legislature theory.

Barrett seemed troubled by the distinction lawmakers were trying to make between non-legislative state entities being able to weigh in on procedural matters around how federal elections were run versus the substantive matters around elections being out of those entities reach. Kavanaugh, meanwhile, said he thought the legislature was overreaching in how it was relying on a concurrence from then Chief Justice William Rehnquist in the 2000 Bush v. Gore case.

Chief Justice John Roberts also said that concession made by the legislature’s lawyer – who said under their theory, the governor can play a role by vetoing election rules – had undermined the Republicans’ case.

A narrow ruling in legislature’s favor still possible: Those key swing votes however asked other questions that suggested that they could rule in North Carolina’s favor, however in a way that avoided blessing the idea that state constitutions could never provide a check on state election rules.

Roberts asked the legislature’s lawyer, David Thompson, whether the problem with how North Carolina courts handled the congressional map is that the state courts were relying on state constitution provisions that were too vaguely worded.

“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.

Kavanaugh and Barrett asked questions later in the hearing – including some posed to lawyers for the legislature’s opponents in the case – that seemed to play with idea.

Thompson, for what it’s worth, seemed to resist that kind of ruling. He called that the “back up” problem with what the state courts did, but held onto the idea that the state courts had no authority to use the state constitution to knock down the redistricting plan.

Read more takeaways here.

2:55 p.m. ET, December 7, 2022

What the scene was like inside the Supreme Court today

From CNN's Erica Lee

Arguments in the Supreme Court's election rules case played out for more than three hours on Wednesday.

Bill Hennessy, CNN's regular Supreme Court sketch artist, captured scenes from inside the courtroom:

David Thompson, representing the North Carolina Republicans, presents before the Supreme Court on Wednesday.
David Thompson, representing the North Carolina Republicans, presents before the Supreme Court on Wednesday. (Sketch by Bill Hennessy)

Neal Katyal, argues on behalf of voting rights groups and individual voters.
Neal Katyal, argues on behalf of voting rights groups and individual voters. (Sketch by Bill Hennessy)

US Supreme Court justice Clarence Thomas listens to arguments with fellow justices on Wednesday.
US Supreme Court justice Clarence Thomas listens to arguments with fellow justices on Wednesday. (Sketch by Bill Hennessy)

Donald Verrilli argues on behalf of North Carolina before the Supreme Court justices.
Donald Verrilli argues on behalf of North Carolina before the Supreme Court justices. (Sketch by Bill Hennessy)

US Solicitor General Elizabeth Prelogar argues on behalf of the Biden administration, which opposes the independent state legislature theory that the GOP-led North Carolina legislature is promoting.
US Solicitor General Elizabeth Prelogar argues on behalf of the Biden administration, which opposes the independent state legislature theory that the GOP-led North Carolina legislature is promoting. (Sketch by Bill Hennessy)

12:48 p.m. ET, December 7, 2022

US Solicitor General Elizabeth Prelogar is now arguing

From CNN's Tierney Sneed

Elizabeth Prelogar appears before a Senate Committee on the Judiciary in 2021.
Elizabeth Prelogar appears before a Senate Committee on the Judiciary in 2021. (Shutterstock)

US Solicitor General Elizabeth Prelogar is now arguing on behalf of the Biden administration, which opposes the independent state legislature theory that the GOP-led North Carolina legislature is promoting.

She warns that adopting the state legislature's arguments would lead to federal courts being flooded with lawsuits around elections.

12:38 p.m. ET, December 7, 2022

Tick-tock, tick-tock: Why Supreme Court oral arguments are taking longer these days

From CNN's Dan Berman

The US Supreme Court building on June 27.
The US Supreme Court building on June 27. (Patrick Semansky/AP)

Nobody is debating the importance of the issue the Supreme Court is debating today – no less than the future of the democratic process, some argue.

But as we enter hour three, if you think that oral arguments are taking a really, really, really long time these days, you’re right.

Blame the Covid-19 pandemic. Before 2020, oral arguments were generally fairly tight one-hour sessions (longer if a case was combined or the court otherwise planned). Speed and brevity were valued, CNN Senior Supreme Court Analyst Joan Biskupic has said.

During the pandemic, the justices held oral arguments over the phone, and the method was changed so each of the nine justices were allowed to ask question in order. Many of them went over time, as did the lawyers at the other end of the phone line. But the format had the advantage of ensuring that no justice was elbowed out of the Q-and-A.

But since returning to the courtroom, the old order has not been restored. Instead, while the justices have returned to their old free-for-all format, they’ve added a second round or gone into a third.

And since none of the justices are showing any signs of cutting back in sharing their questions and views, it seems like oral arguments that go on for 90 minutes or two hours — or more — are the new normal.

Read more here.

1:04 p.m. ET, December 7, 2022

Key swing votes look open to offramp being offered by Roberts

From CNN's Tierney Sneed

Justice Brett Kavanaugh and Justice Amy Coney Barrett.
Justice Brett Kavanaugh and Justice Amy Coney Barrett. (Getty Images)

Justices Brett Kavanaugh and Amy Coney Barrett both asked questions of Neal Katyal that hinted they were thinking through a narrow ruling in the legislature's favor that stopped well short of adopting the independent state legislature theory.

Such a ruling was previously floated in questions from Chief Justice John Roberts, who suggested that the problem with how North Carolina courts handled the congressional map is that the state courts were relying on too vague of provisions in the state constitution.

Kavanaugh pinned Katyal down to confirm that his clients weren't suggesting that federal courts were never allowed to second guess a state court's interpretation of a state constitution. Katyal emphasized that the standard for federal courts to do so is "sky high."

Barrett picked up on Kavanaugh's question, by equating the Election Clause to how the US Constitution's Due Process Clause puts some limits on how state law treats legal questions about property.

12:18 p.m. ET, December 7, 2022

Donald Verrilli, second lawyer for opponents of independent state legislature theory, now arguing

Tierney Sneed

Donald Verrilli speaks at the Oxford Union in 2017.
Donald Verrilli speaks at the Oxford Union in 2017. (Roger Askew/The Oxford Union/Shutterstock)

Donald Verrilli, who is representing the North Carolina executive branch officials opposing the legislature in the case, is now arguing.

Verilli served as a US solicitor in the Obama administration.

1:08 p.m. ET, December 7, 2022

What conservative justices open to independent state legislature doctrine are saying today

From CNN's Tierney Sneed

The conservative justices who have been the most open about their inclination towards the independent state legislature theory are pushing back on the arguments for why it should not be adopted.

Justice Clarence Thomas repeatedly suggested that, because the Election Clause — the US Constitutional provision key to his case — deals with the federal congressional elections, state courts can be told to stay out of interpreting those rules.

Justice Samuel Alito posed a series of hypotheticals meant to test the limits of the arguments being put forward by Neal Katyal, the lawyer for opponents to the North Carolina legislatures. The hypotheticals looked at different scenarios where a state supreme court would commander the job of congressional map drawing from state legislatures.

Justice Neil Gorsuch quizzed Katyal on the possibility that state constitutions would mandate partisan gerrymander or adopt the pre-Civil War understanding that an African-American counts for three-fifth of person.

Thomas, Alito and Gorsuch — over the course of dissent and statements written in the 2020 election litigation — showed themselves to be very sympathetic to the theory. The key question is whether they can get two others to join them.

1:09 p.m. ET, December 7, 2022

Kagan raises risk of the state legislature meddling with the certification of an election

From CNN's Tierney Sneed

People vote at a polling location in Fuquay-Varina, North Carolina, on November 8.
People vote at a polling location in Fuquay-Varina, North Carolina, on November 8. (Allison Joyce/Getty Images)

When she was questioning the legislature's lawyer David Thompson, Justice Elena Kagan zeroed on in the "consequences" if the Supreme Court were to adopt the independent state legislature theory.

She said doing so could allow state legislatures to get rid of voter protections in a way that would run afoul of their state constitutions. She also raised the possibility the state legislatures would be able to insert themselves into the certification of elections.

"I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances, on the way big governmental decisions are made in this country."

She added: "And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most."

There were fears in the 2020 election that Donald Trump-aligned state legislatures would use the "independent state legislature" theory to interfere with the certification of President Joe Biden's win in battleground states. It's worth noting that, in the presidential election context, the independent state legislature theory relies on a separate constitutional provision from the clause at issue in the North Carolina case.