The Supreme Court on Thursday asked lawyers for advice on whether the Justices still can decide the most important voting rights case in years – a basic test under the Constitution of who in state government controls federal elections.
In a new order, the Justices called for new legal briefs discussing the impact of the North Carolina Supreme Court’s decision last month to reopen a historic case that involves the constitutionality of the controversial “independent state legislature” theory, when that theory is applied to elections to Congress or to the Presidency.
Under that theory – most famously put forth in former President Donald Trump’s failed attempt to overturn his defeat in the 2020 election – a state’s legislature has sole control over the outcome of federal elections and so there is no role for state courts to play.
The theory was previously rejected by the North Carolina Supreme Court in a ruling on the election districts used in choosing that state’s 13 members of the U.S. House of Representatives. That decision came in the case of Moore v. Harper, which has taken on national significance since the Supreme Court stepped in to decide the validity of that theory.
The case was appealed to the Court by Republican leaders of the state legislature. The Justices held a hearing on it on December 7 and, since then, have been working on it in private, with a decision not expected until near the end of the current term in June or July.
However, a month ago, after Republicans took over control of the state’s highest court in the 2022 elections, the GOP legislative leaders persuaded the state tribunal to rehear the case, raising the prospect of a different outcome.
The state court is receiving new legal briefs on what to do with the case, and has scheduled a hearing for the afternoon of Tuesday, March 14.
The Supreme Court apparently had been monitoring what was happening in the state court, since it knew that further proceedings were happening there. It had done nothing publicly with the case, until Thursday. The new order told lawyers for both sides and for the Justice Department, which is taking part in the case, to file new briefs by March 20.
Those filings are to discuss one question: what is the impact on the Supreme Court’s authority – that is, its jurisdiction – to decide Moore v. Harper in the wake of the new review by the state court and any new state court decision that results? (It seems unlikely that the state court will have a new decision by the March 20 date when those new filings are due, since its hearing is less than a week before that date.)
The Justices’ order specifically asked how its authority might be affected under one of the Justices’ own prior rulings, a decision in 1975 in a case from Georgia, Cox Broadcasting v. Cohn.
That precedent involves the issue of whether a state Supreme Court decision on the meaning of a federal issue has become final. Since 1789, the Court has had jurisdiction to review decisions in state courts resolving issues of federal law, but only if a final decision has been made on that point in the highest state court.
In the Cox Broadcasting decision, the Justices ruled 8-to-1 that they could review that case because any remaining actions by state courts were only on issues of state, not federal, law. Thus, it said, if there is a final decision on the federal question, that is open to Supreme Court review even though the state court will be acting further on state law questions.
The new briefs to be filed in Moore v. Harper thus will have to sort out whether the state court’s earlier ruling rejecting the “independent state legislature” theory was a decision on a federal question or a decision on the state constitution or state law.
It is possible that it was both: the decision upheld the power of state courts to review election districting cases by interpreting the state constitution, but the theory it rejected on that same point is based upon the meaning of the U.S. Constitution’s so-called Elections Clause, which governs state power over congressional districts.
The Supreme Court may face something of a quandary: in order to know whether what the state court is now reviewing was a final decision on the federal question, or instead was a ruling on the state constitution, it may not be able to take any final action on the pending case until after a new decision emerges at the state level.
The Supreme Court does not have authority to review state court interpretations of their state constitutions unless those conflict with federal law or the federal Constitution.