US Supreme Court seeks information about impact of NC redistricting rehearing

The U.S. Supreme Court has ordered parties in the Moore v. Harper redistricting dispute to file new briefs responding to this month’s rehearing of redistricting issues at the state Supreme Court.

The nation’s highest court issued a one-paragraph order Thursday. “The parties and the Solicitor General are directed to file supplemental letter briefs addressing the following question: What is the effect on this Court’s jurisdiction … of the North Carolina Supreme Court’s February 3, 2023, order granting rehearing, and any subsequent state court proceedings?”

New court filings cannot exceed 10 pages. They are due to the U.S. Supreme Court by 2 p.m. March 20.

That’s six days after the N.C. Supreme Court is scheduled to rehear Harper v. Hall, a related case focusing on North Carolina’s statewide congressional and legislative election maps.

In Moore v. Harper, the U.S. Supreme Court is scheduled to decide whether North Carolina’s top court exceeded its authority when it threw out congressional election maps drawn by the Republican-led General Assembly.

In a decision released Dec. 16, the outgoing state Supreme Court’s 4-3 Democratic majority upheld a trial court’s decision to throw out lawmakers’ second attempt at a map detailing North Carolina’s 14 districts for seats in the U.S. House of Representatives. Trial judges substituted their own map, endorsed by three outside “special masters.” The state Supreme Court affirmed that plan.

Two weeks after the Harper v. Hall decision, two new Republican state Supreme Court justices replaced outgoing Democrats. With a 5-2 Republican majority, the current state Supreme Court agreed to rehear Harper v. Hall. The new court could overturn the previous court’s ruling that legislative maps amounted to extreme partisan gerrymanders that violated the N.C. Constitution.

The U.S. Supreme Court heard oral arguments in Moore v. Harper on Dec. 7, nine days before the outgoing state Supreme Court’s last redistricting ruling.

Nearly three hours of arguments offered clues about the court’s decision.

Legislative leaders argue that the federal Elections Clause should have blocked the state Supreme Court’s actions. That clause assigns decisions about federal election laws to state legislatures.

“It is federal law alone that places substantive restrictions on states’ legislatures performing the task assigned by the federal Constitution,” argued legislators’ attorney, David Thompson. “The Founders tasked state legislatures with federal functions that transcend any substantive limitations sought to be imposed by the people of the state.”

Justices in the U.S. Supreme Court’s so-called liberal bloc expressed concern about stepping in to overrule North Carolina’s highest court. Justice Elena Kagan specifically referenced the Independent State Legislature Doctrine, a name critics have attached to N.C. lawmakers’ arguments.

“This a theory with big consequences,” Kagan said. “It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the constitution. It would say that legislatures can enact all manner of restrictions on voting — get rid of all kinds of voter protections.”

“It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated,” Kagan added.  “In all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances.”

Justice Ketanji Brown Jackson asked how a state legislature could avoid a review of its actions from a state court applying a state constitution. “When this entity would ordinarily be bound  by all of the limitations in the state constitution in its legislative authority role, why suddenly in this context do you say, ‘No, no, no.’ All those other constitutional provisions that would bind or constrict legislative authority that the state gives you because you’re the state legislature — why do those evaporate?”

Attorney Neal Katyal, arguing for left-of-center activist group Common Cause, made repeated references to potential wide-ranging negative impacts of N.C. lawmakers’ legal arguments. “The blast radius by their theory starts at the size extra-large,” Katyal said. “It starts with invalidating 50 different state constitutions today.”

U.S. Solicitor General Elizabeth Prelogar raised similar concerns on behalf of President Biden’s Justice Department. Prelogar contended that historical evidence contradicts N.C. lawmakers’ arguments. “Petitioners’ contrary theory rejects all of this history and would wreak havoc on the administration of elections across the nation,” she said.

But some justices expressed more sympathy for lawmakers’ arguments.

“It seems to me there are two types of problems. One, Is the state court actually interpreting a statute, or is it going too far afield to the point where someone might say it’s not following the statute,” said Justice Neil Gorsuch. “Then you have a separate problem of when a state court does not even try to interpret the law and just annuls the law outright. And that’s this case.”

Justice Samuel Alito questioned the role of a partisan elected state Supreme Court in redistricting disputes. “There’s been a lot of talk about the impact of this decision on democracy,” he said. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts, where the candidates are permitted by state law to campaign on the issue of districting?”

Attorney Donald Verrilli, representing state government interests outside the legislature, offered a way justices could decide whether a state supreme court strayed too far from its proper role.

“You would ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law,” Verrilli said.

Alito subjected the N.C. Supreme Court’s decision to that standard. “Boy, that seems awfully close to what you said would be a violation,” he told Verrilli. “There’s 100 pages of elaboration, but basically at the beginning they say what they’re doing. Basically, they’re saying, in no uncertain terms, ‘Look, there’s legislative malfunction here. The legislature has adopted political gerrymandering. It’s really hard to amend the state constitution, and we don’t have a referendum to correct it. So there’s a big problem in the state, and we have to step in.’”

Put in place only for the 2022 election cycle, the court-drawn election map helped produce a 7-7 split between the two major parties in North Carolina’s congressional delegation. Earlier court hearings had suggested that the state’s political geography was likely to give Republicans at least an 8-6 advantage, with 9-5 or 10-4 GOP majorities possible in strong Republican election cycles.

Prior to Thursday’s request for new briefs, U.S. Supreme Court observers expected a decision in Moore v. Harper in June.

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