The US Supreme Court asked lawyers in the case of Moore v. Harper to submit a new brief in the case on March 20 after the North Carolina Supreme Court granted a rehearing of the underlying redistricting case.
The Supreme Court asked attorneys in the case to submit a brief brief, not to exceed 10 pages, on the “effect on the jurisdiction of this Court” following “the order of the North Carolina Supreme Court dated February 3, 2023 granting a rehearing, and subsequent state court proceedings. .”
The request signals that the U.S. Supreme Court is considering declassifying the case and dismissing it without issuing a decision as the North Carolina Supreme Court hears arguments that could change the underlying facts. The high court initially heard arguments in the case on December 7.
If the US Supreme Court rejects the case, it will save the justices from issuing a ruling on the highly divisive theory of independent state legislatures.
North Carolina Republicans brought the suit in Moore v. Harper after the North Carolina Supreme Court tossed the 2021 congressional redistricting plan as an unconstitutional partisan gerrymander. The state GOP argued that state courts do not have the right to judge actions taken by state legislatures related to redistricting or election laws because the US Constitution states that the “Legislature” determines the “time, place, and manner” of federal elections.
Under this theory of independent state legislatures, state courts have no ability to review election laws or redistricting plans enacted by state legislatures. Since the US Supreme Court has blocked federal courts from reviewing complaints of partisan gerrymandering in previous cases involving North Carolina redistricting, this means that the state legislature will be unrestricted in its ability to gerrymander congressional districts. And they will only be bound by federal courts if they seek to limit voting rights or access. A more extreme version of the theory would even eliminate the governor’s veto on election laws and district maps.
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This theory has been widely supported by figures from across the ideological spectrum, including retired conservative judge Michael Luttig, former Attorney General Eric Holder, Conservative Federalist Society founder Steven Calabresi, Democratic Party attorney Marc Elias and former Republican National Committee attorney Ben Ginsburg. , among many others.
The case came before the US Supreme Court after conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh signaled interest in the theory in the final weeks of the 2020 election.
But Republican-aligned justices won two seats on the North Carolina Supreme Court in the 2022 midterm elections, flipping control from liberals to conservatives. State GOP lawmakers asked for a reconfigured court to rehear cases challenging the court’s earlier rulings to overturn congressional district maps, and the new court agreed.
That put the US Supreme Court in a bind. How can a judge rule on a case when the underlying facts are being re-examined at the same time? Or give an easy court out on a thorn issue.
If the high court rejects this case, it does not reverse the four conservative judges’ previous statements of interest in the theory. This is enough for the judge to take similar cases in the future.