Voters and a Republican candidate for the House sued state officials in federal court to challenge the new map. When they did not receive immediate relief, they asked the US Supreme Court to intervene.

Both emergency applications relied on the Elections Clause of the Constitution, which says “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” That meant, the challengers argued, that the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play.

“The question presented here,” North Carolina Republicans wrote in their application, “goes to the very core of this nation’s democratic republic: what entity has the constitutional authority to set the rules of the road for federal elections.”

The North Carolina Supreme Court rejected that argumentsometimes called the independent state legislature doctrinesaying it was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”

But four justices of the US Supreme Court have suggested that they are sympathetic to the doctrine. Three opinions issued in October 2020 seemed to endorse it.

“The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election, ”Justice Alito, joined by Justices Gorsuch and Thomas, wrote in a statement when the court refused to fast-track review of whether the Pennsylvania Supreme Court could alter deadlines for mail ballots set by the legislature.

Along the same lines, Justice Gorsuch, joined by Justice Kavanaugh, wrote in a concurring opinion that “the Constitution provides that state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules.”