By Matthew Vadum
The U.S. Supreme Court is moving closer to deciding if it will issue an opinion in 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.
Many legal observers had speculated that the case was dead after a state supreme court overturned the ruling being appealed, but late in the day on May 4, the U.S. Supreme Court indicated it wanted to hear from the opposing litigants and from U.S. Solicitor General Elizabeth Prelogar, the Biden’s administration top lawyer at the Supreme Court.
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.
The case, Moore v. Harper, is currently being deliberated by the justices after a marathon oral argument session on Dec. 7, 2022, which The Epoch Times reported on at the time.
Republican Tim Moore, 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.
The Elections Clause in Article I of the U.S. Constitution states in part: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
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.
Republicans now represent seven of the state’s U.S. House districts; Democrats represent the other seven districts. Some political analysts said the legislature’s map would allow Republicans to increase their standing in the state’s congressional delegation.
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 also asked lawyers for the parties to file supplemental briefs on how to proceed.
The state supreme court reheard Harper v. Hall and then overruled itself on April 28, finding 5-2 that the General Assembly—not judges—have 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.
In a short unsigned order (pdf) on May 4, the justices asked 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 briefs are due by 2 p.m. on May 11.
The U.S. Supreme Court could decide to dismiss Moore v. Harper 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.