How to listen to arguments in North Carolina’s nationally watched Supreme Court case

On Wednesday morning the U.S. Supreme Court will hear a case out of North Carolina that has received widespread national attention for its implications on the future of democracy in the United States.

If the justices rule in favor of the state’s Republican legislators who brought the lawsuit, it could change how elections work not just in North Carolina but in every state in the country.

It’s “the single-most important case on American democracy,” said former federal judge Michael Luttig, a Republican who was once a finalist for a nomination to a seat on the Supreme Court, The News & Observer reported in November.

Lawyers on all sides of the lawsuit, called Moore v. Harper, have written tens of thousands of words for the Supreme Court laying out their various positions.

▪ The main question is whether state legislatures should have much more power to rewrite the rules for federal elections — without the normal system of checks and balances that allows state courts to strike down laws as unconstitutional.

▪ Republican legislators and their supporters say it’s how the Founding Fathers really meant for the system to work, even if it has never worked that way before.

▪ Critics say it would allow voters’ rights to be violated, could sow chaos and confusion in elections and could even lead to future presidential elections being awarded to the losing candidate, if legislators decide to ignore the popular vote in key states.

How to listen to arguments

When: 10 a.m. Wednesday

Where: Audio streaming online, at www.supremecourt.gov or at www.c-span.org/supremecourt

Deep dive: A written transcript should be posted Wednesday afternoon on the Supreme Court website.

What to watch for

The argument is based on what is known as the “independent state legislature” theory. The Supreme Court has shot it down in the past, but it enjoys support among at least a few of the court’s most conservative justices.

Three of them wrote earlier this year that they would’ve ruled in favor of the legislature, at least in an early stage of this lawsuit.

“Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the (legislature’s) argument is stronger,” Justice Samuel Alito wrote in March, in a dissent that Neil Gorsuch and Clarence Thomas also joined.

A winning argument on Wednesday would need to convince five or more justices, not just three.

So during the oral arguments many observers will be watching which way other members of the court are leaning — or if Thomas, Alito or Gorsuch appear to have since changed their minds.

Why it matters

Republican legislative leaders in North Carolina are asking for more power to change election laws without court oversight, saying they think judges have become too aggressive in striking down their actions as unconstitutional.

The GOP here has lost multiple high-stakes lawsuits in recent years as new election laws they passed were ruled unconstitutional for racial discrimination and other causes.

Critics of the legislature’s argument say it would introduce chaos into elections. They contend that voters’ rights could be violated more freely and it could lead to two different sets of rules for elections in a given state — one for local races and one for national races — with people potentially only allowed to vote in some of the races on the ballot but not others.

Others, like Luttig, also say the controversial legal theory North Carolina Republicans base their argument on is the same one that former President Donald Trump tried using in court to overturn the results of the 2020 election and stay in power despite losing.

If the Supreme Court gives it the green light now, he has said, a similar plan could work in 2024 or beyond even though it failed in 2020. It would work by giving more authority to the types of fake electors that the Trump campaign tried and failed to use in 2020 to flip half a dozen key swing states from blue to red after the election.

Luttig — who has said he advised former Vice President Mike Pence that Pence couldn’t go along with the fake elector plan that culminated on Jan. 6, 2021 — isn’t the only conservative to oppose the argument North Carolina legislators are making.

There’s widespread bipartisan opposition to the legal theory, The N&O has reported.

“Frankly, this theory is nuts,” wrote the former Republican governor of California, Arnold Schwarzenegger.

However, the North Carolina Republican leaders advancing it also aren’t completely without allies. The national Republican Party is formally backing their case, as are some state GOP organizations, plus national Republican groups focused specifically on redistricting.

State lawmakers want the power to engage in aggressive redistricting without the end result being struck down as unconstitutional gerrymandering. That’s what led to this lawsuit in the first place.

“The only checks placed upon state legislatures are ones that the legislature (or the people) voluntarily imposes upon itself and those adopted by Congress,” wrote the National Republican Redistricting Trust, in support of the argument.

For more North Carolina government and politics news, subscribe to the Under the Dome politics newsletter from The News & Observer and the NC Insider and follow our weekly Under the Dome podcast at campsite.bio/underthedome or wherever you get your podcasts.