Lawyers involved in a major election law case disagreed on Monday about whether the Supreme Court has the power to reach a decision in the case. In December, the justices heard argument in Moore v. Harper, in which a group of Republican legislators from North Carolina argued that the “independent state legislature theory” – the idea that the Constitution gives state legislatures nearly unfettered authority to regulate federal elections – barred the North Carolina Supreme Court from setting aside a congressional map adopted by the state’s legislature.
Lawyers for those legislators told the justices on Monday that although the North Carolina Supreme Court is reconsidering part of its 2022 ruling, the Supreme Court should nonetheless decide the case before it. Lawyers for one group of challengers, Common Cause, agreed, while other challengers urged the justices to dismiss the case.
The dispute dates back to November 2021, when the state’s Republican-controlled legislature adopted the new map. Democratic voters and non-profits went to court to challenge the map as a partisan gerrymander – that is, drawn to favor one party at another’s expense. The state supreme court (which at the time had a 4-3 Democratic majority) agreed that the new map violated a provision in the state constitution that guarantees free elections, and it barred the state from using the map in the 2022 elections.
After the trial court adopted a new map drawn by three court-appointed experts, the Republican legislators came to the Supreme Court. They contended that the state supreme court’s decision setting aside their map overstepped its authority under the U.S. Constitution’s elections clause, which provides that the time, place, and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.” The state and the challengers countered that a ruling in favor of the legislators would upend federal elections and sow chaos in the administration of elections across the country.
During the November 2022 elections, Republicans picked up two seats on the state supreme court, giving them a 5-2 majority. On Feb. 3, a divided state supreme court agreed to rehear the partisan gerrymandering dispute, which it did on March 14.
The state supreme court’s decision to rehear the case prompted the U.S. Supreme Court to call for more briefing on the effect of the rehearing on the court’s power to consider the case.
In a four-page brief filed on Monday, the legislators told the justices that, despite the rehearing order, the court still has the power to decide the case. They explained that the state supreme court’s decision to rehear one facet of the underlying dispute – whether the trial court was correct in rejecting the legislature’s proposed alternative map – has no effect on the U.S. Supreme Court’s ability to decide the case because the justices agreed to review two other decisions by the North Carolina Supreme Court: its decision holding that the state courts could strike down redistricting maps and draft new ones, as well as its decision allowing the court-ordered map to go into effect for the 2022 election. The North Carolina Supreme Court’s decision on rehearing will not change either of those decisions, the legislators say. The original map “will not be revived,” they write, and the state supreme court cannot “turn back time and rerun the 2022 congressional election on a map other than that written by the North Carolina court.”
One group of challengers, Common Cause, agrees with the legislators that the Supreme Court should resolve the dispute over the “independent state legislature” theory. The group notes that the legislators’ “position in this case is that state courts have no role to play in reviewing congressional redistricting maps” – a question that “will remain live before this Court” no matter how the state supreme court rules. And in any event, the group adds, the Supreme Court should weigh in on the “independent state legislature” theory now, “rather than on an emergency basis during the 2024 election cycle.”
The Biden administration is skeptical that the Supreme Court still has power to decide the case, explaining that the state supreme court’s decision to grant rehearing “makes it difficult to conclude that the state court has entered” the kind of “final judgment” that federal law requires for the Supreme Court to step in. And although there may be limits on a state court’s ability to take away the Supreme Court’s power to hear a case once the Supreme Court has decided to review it, Solicitor General Elizabeth Prelogar notes, those limits do not necessarily apply here.
The remaining challengers – the North Carolina Department of Justice, the National League of Conservation Voters, and individual voters – urge the justices to dismiss the case. In their view, the decisions in this case were never final, a fact that the state supreme court’s rehearing order simply confirms.
This post is also published on SCOTUSblog.