By Matthew Vadum
The Biden administration asked the U.S. Supreme Court to dismiss a high-profile case in which Republicans want the court to recognize state legislatures’ power to regulate federal elections without interference from state courts, which they say the U.S. Constitution requires.
At issue is the once-obscure independent state legislature doctrine, under which Republicans argue that the Constitution has always directly authorized state legislatures alone to make rules for the conduct of federal elections in their respective states.
Democrats say the doctrine is a fringe conservative legal theory that could endanger voting rights, green-light partisan gerrymandering in the redistricting process, and cause upheaval in the electoral process.
The doctrine is at the heart of a case, Moore v. Harper, that is currently being deliberated by the justices after it was argued in December 2022.
Republican Tim Moore, the speaker of the North Carolina House of Representatives, is asking the nation’s highest court to recognize that state legislatures have preeminent authority under the Constitution to make the rules for presidential and congressional elections without state courts getting involved in the process.
Specifically, Moore is appealing an order by the then-Democratic-dominated Supreme Court of North Carolina redrawing the state’s electoral map against the wishes of the state’s Republican-majority legislature. The state court had found the legislature-approved map unlawfully disfavored Democratic Party voters.
But while the justices in Washington were deliberating the case, on Feb. 3, the Supreme Court of North Carolina, which now has a Republican majority, decided to rehear the underlying case, known in that forum as Harper v. Hall. At that time, the U.S. Supreme Court asked lawyers for the parties to file supplemental briefs on how to proceed.
The state supreme court then reheard Harper v. Hall and overruled itself on April 28, finding 5-2 that the General Assembly—not judges—has sole authority over the redistricting process. The majority opinion states that there is “no judicially manageable standard by which to adjudicate partisan gerrymandering claims” and that courts “are not intended to meddle in policy matters.”
“This case is not about partisan politics but rather about realigning the proper roles of the judicial and legislative branches. Today we begin to correct course, returning the judiciary to its designated lane,” North Carolina Chief Justice Paul Newby, a Republican, wrote for the court.
On May 4, the U.S. Supreme Court asked U.S. Solicitor General Elizabeth Prelogar, as well as attorneys for Moore and North Carolina voters who favor allowing the judge-made state electoral map to remain in place, “to file supplemental letter briefs addressing the following question: What is the effect on this Court’s jurisdiction of the April 28, 2023, order of the North Carolina Supreme Court?”
The U.S. Supreme Court has several options about how to proceed.
The court could order new oral arguments in Moore v. Harper. It could dismiss the case as moot because the underlying controversy that gave rise to the appeal no longer exists. The court could also move forward with issuing a formal opinion in the case if the justices believe the issues at hand are too important to ignore.
Prelogar, in her new brief filed last week, wrote that the North Carolina court’s order of April 28 that held the “North Carolina Constitution imposes no judicially enforceable limits on partisan gerrymandering, overruled the court’s contrary decision in Harper I, and dismissed the underlying suit with prejudice.”
“Harper I” is the nickname for the North Carolina Supreme Court’s decision that originally struck down the maps.
The April 28 order “moots the question this Court [agreed] to decide because it means that the Court’s resolution of that question could have no effect on the outcome of this case,” Prelogar said.
Sarah Boyce, representing the office of North Carolina Attorney General Josh Stein, a Democrat, also asked the U.S. Supreme Court to throw out the case.
“This most recent Harper decision confirms that this Court lacks jurisdiction and should dismiss this case,” Boyce said.
“Here, this Court can no longer grant Petitioners any meaningful relief because the state supreme court has already given them everything they wanted.”
But Moore’s attorney, David Thompson, urged the U.S. Supreme Court to move forward and issue an opinion in the case in his brief (pdf) .
“The North Carolina Supreme Court’s April 28 rehearing decision has no effect on this Court’s jurisdiction. This appeal continues to present two final judgments for the U.S. Supreme Court’s review … and the issues presented are not moot.”
“While the North Carolina legislature is free to enact a new congressional map to govern the 2024 election cycle and subsequent elections, if this Court reverses Harper I, then the original Congressional map adopted by the North Carolina legislature before the outset of this controversy will be restored as the default map governing congressional elections in North Carolina. This case is not moot, and this Court is fully possessed of jurisdiction to decide it.”
The U.S. Supreme Court is expected to decide the matter in the coming days.