Courts Newsletter: SCOTUS Rejects Independent State Legislature Theory

North Carolina House Speaker Tim Moore in front of the U.S. Supreme Court last December. (AP Photo/Andrew Harnik)

Some breaking news to start things off. In a 6-3 ruling issued this morning, the U.S. Supreme Court rejected North Carolina Republicans’ independent state legislature theory.

The decision averted a ruling that critics said would upend democracy and “sow election chaos,” as attorney Neal Katyal, who represented the advocacy group Common Cause, told justices during oral arguments last year.

After the N.C. Supreme Court struck down congressional districts the General Assembly drew as partisan gerrymanders last year, House Speaker Tim Moore and Senate leader Phil Berger asked the U.S. Supreme Court to rule that the Constitution’s Elections Clause allows state legislatures—and only state legislatures—to set rules for federal elections. State judges—and the state constitutions they enforce—are irrelevant.

This theory had immediate implications for political gerrymandering, which the U.S. Supreme Court ruled in 2019—in another North Carolina case—that federal judges could not address, but state laws could. Beyond North Carolina, a ruling in the other direction could have dismantled independent redistricting commissions and invalidated state constitutional amendments requiring fair districts.

But critics argued that the threat to democracy extends further: At its most extreme, the theory would allow legislators to disregard their states’ popular votes for president and allocate electoral votes however they want; state courts wouldn’t be able to stop them. Indeed, in the aftermath of the 2020 election, former President Donald Trump’s lawyers used this theory to ask the U.S. Supreme Court to set aside results in battleground states based on false allegations of fraud so that their Republican legislators could name him the winner.

Earlier this year, the N.C. Supreme Court gave SCOTUS an out. The state court’s new Republican majority reversed itself and endorsed partisan gerrymandering. The U.S. Supreme Court could have decided that rendered the case before it moot, but it did not. Instead, the court made a decisive ruling.

“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John Roberts wrote for the majority, which included the three liberal justices as well as Brett Kavanaugh and Amy Coney Barrett.

Moore and Berger’s theory, Roberts continued, ignores precedent and “does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life”—in other words, state constitutions.

The majority added a coda that “state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures,” though it declined to establish a standard for when state courts have gone too far or say whether the N.C. Supreme Court did so in 2022.

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A Man Alone

Craig Waleed inside his home. (Jade Wilson for *The Assembly*)

Craig Waleed first spent 30 days alone inside a cell the size of an average parking space after participating in a hunger strike as a 21-year-old inmate.

At first, Waleed relished the relative calm of solitary confinement, compared to the rest of the prison. But after two days under the harsh fluorescent light that only dimmed at night, he started to experience anxiety attacks. “It seemed like the walls were starting to get smaller and tighter,” he said. “It’s almost like a wet, heavy blanket put on you.”

When he was sent to solitary again two years later, it wasn’t any easier. He began to worry about his mental health. He couldn’t tell the difference between day and night, and started feeling anxious. The voices in his head became audible.

“I felt myself unraveling,” said Waleed.

At any time in North Carolina, an estimated 2,500 people are confined in cells roughly the size of Waleed’s, which accounts for nearly 10 percent of the total incarcerated population in the state. They can be kept there for 22 to 24 hours per day.

He now works as a project manager for the nonprofit advocacy group Disability Rights North Carolina’s “Unlock the Box” campaign—to make sure incarcerated people in the state don’t endure the suffering of solitary confinement.

Reporter Ahmed Jallow profiled Waleed and the efforts to change policies regarding solitary confinement in North Carolina

A Man Alone

Craig Waleed’s time in solitary confinement almost broke him. Now he works to ensure others in North Carolina don’t suffer the same isolation.

“That’s what fuels me,” said Waleed. “My experience of pain, loss, and trauma.”

Programming Note: We are taking a break from the Courts Newsletter in July to rest and ramp up for the fall. So, this is the last one you’ll receive for a few weeks. See you in August!

On Our Radar

>> HB 790

Since 2007, the N.C. Innocence Inquiry Commission has reviewed more than 3,300 wrongful-conviction claims. Less than 1 percent resulted in exoneration.

But the N.C. Conference of District Attorneys believes the commission’s process for reviewing claims is unfair to prosecutors. The conference is backing a bill in the General Assembly that could make it harder for defendants to prove their innocence.

Earlier versions of House Bill 790 included provisions prohibiting the commission’s executive director from accepting private donations and limiting the commission’s work to claims from currently incarcerated people. After commission officials raised concerns, the bill was amended.

But one major change remains. Currently, if the eight-member commission decides that the claimant has proven their innocence by “clear and convincing evidence,” it sends the case to a panel of three appointed superior court judges, who hold a hearing to determine if the claimant should be exonerated. The bill requires that panel to apply the same evidentiary rules at its hearings that are in place for criminal jury trials.

Such a rule would severely narrow what kind of evidence the panel considers. Currently, all “credible, verifiable evidence relevant to the case” is presented. But the state’s rules regarding evidence are stricter and could make it harder for defendants to show evidence that could prove their innocence.

The bill also changes when the commission must notify prosecutors and make evidence available to them and when it holds pre-evidentiary hearings.

The bill grants Chief Justice Paul Newby additional authority as well. The chief justice already appoints the three-judge panels and half of the commission board. The bill would have the N.C. Administrative Office of the Courts, which Newby oversees, appoint special prosecutors in cases with alleged prosecutorial misconduct—a power that now belongs to the attorney general. (Coincidentally, Newby is a Republican, while Attorney General Josh Stein is a Democrat.)

Some Democrats and criminal justice reform advocates have questioned the need for the changes. But Chuck Spahos, the conference’s powerful lobbyist, contends that the bill is about fairness. He also called North Carolina’s push to exonerate the innocent through the commission “one of the broadest assaults on convictions in the country.”

According to the National Registry of Exonerations, at least 72 people in North Carolina—including eight sentenced to death and 27 serving life—have been exonerated since 1989, most in the last decade. (Not all have been through the commission.)

The state Senate has approved the bill. It’s now in the state House.

>> Planned Parenthood v. Stein

Last week, we told you that Planned Parenthood had sued in federal court to block North Carolina’s abortion law from taking effect on July 1, arguing that it is unconstitutionally vague, self-contradictory, and poorly written.

Unsurprisingly, Democratic Attorney General Josh Stein, who is running for governor, agreed. He announced last week that after a “thorough review,” his office would not defend several of the law’s provisions — though he didn’t specify which ones. Also unsurprisingly, legislative Republicans denounced Stein for abdicating his responsibilities.

More interesting, though, is the General Assembly’s tacit admission that Planned Parenthood might have a point. On June 22, the state Senate voted 27-17 to pass an amendment that addresses some of the issues raised in the lawsuit.

For example, the amendment eliminates a provision in the first law making it illegal to “advise” a pregnant person on getting an abortion after 12 weeks of pregnancy, remedying what is likely a First Amendment violation. It also eliminates a clause that appears to ban medication abortions at 10 weeks and tweaks reporting requirements to make them feasible.

The Senate needs to approve the amendment one more time to send it to the House.

>> Charter Day School v. Peltier

Last year, the Fourth Circuit Court of Appeals ruled that Charter Day School Inc. is a “state actor” that can be sued for civil rights violations. The court also said that Charter’s policy requiring girls at its four southeastern North Carolina schools to wear skirts, jumpers, or skorts violated the Equal Protection Clause.

According to court records, Charter’s founder justified the policy by arguing that a female student is a “fragile vessel that men are supposed to take care of.”

Charter asked the U.S. Supreme Court to reverse the appellate court’s decision, arguing that the ruling “eliminates the independence of charter schools and constricts parental choice.” Charter also claimed that the Fourth Circuit had deviated from other appeals courts’ rulings. “This is a national issue that needs resolution by the Nation’s highest court.”

The John Locke Foundation, 10 Republican-led states, and Tim Moore and Phil Berger weighed in on the school’s behalf. “The decision may directly jeopardize some existing charter schools—for example, those that offer single-gender education,” Moore and Berger argued in a brief.

Only the Biden administration — at the Supreme Court’s invitation — filed an amici brief arguing that the court should dismiss Charter’s petition for certiorari, saying the court has previously deemed private entities to be state actors when “the government has outsourced one of its constitutional obligations to a private entity.”

Because of the appellate-court split and the case’s ideological questions, the case seemed like a good candidate for cert. But on Monday — without a word of explanation or a hint of dissent — the Supreme Court rejected the appeal.