The most important voting rights case now before the Supreme Court may be newly at risk of ending without a decision. A recent decision by the North Carolina Supreme Court has raised the prospect that there may be nothing left for the Justices to decide.
On Thursday, the Court told lawyers on all sides of the controversy to file new written briefs – all due in a week – on the impact of that state court ruling on the case of Moore v. Harper, which the Justices have had under review for months. The case is a historic test of whether state constitutions put any limit on the power of state legislatures when those chambers are writing laws governing elections to Congress and the Presidency.
The Justices took on that case to provide their views on a controversial theory never validated as a constitutional matter – the so-called “independent state legislature theory.” That is the idea that state legislatures have wide authority under the U.S. Constitution over federal elections, with no check on them by either the state courts or a state governor.
It is a theory now favored by Republican-dominated state legislatures as they seek to enhance their party’s prospects in choosing members of the U.S. House of Representatives and in choosing the President. It also was a theory that then-President Donald Trump and his allies sought to use to try to win a new term for him in the White House by undoing the results of the 2020 election won by President Biden.
In the Moore v. Harper case, the theory is being tested in a dispute over partisan gerrymandering of North Carolina’s 14 seats in the U.S. House. Gerrymandering is a practice, going back in American history to 1812, by which a legislature draws election voting maps in order to assure an advantage for one political party at the polls. With sophisticated modern computer data, it is much easier to create maps that have predictable outcomes.
North Carolina is a state in which the two major parties have been splitting about evenly in statewide voting shares, but the legislature there drew maps in 2021 that seemed to assure that the GOP would win 10 seats and the Democrats four.
Before those maps were used, they were ruled unconstitutional by the state Supreme Court (in the decision the Justices in Washington have been pondering). New maps were drawn by a state court and then used in the 2020 election, resulting in a 7-to-7 party lineup in the state’s delegation in the House of Representatives.
However, state elections in 2022 elections created a new Republican majority on the state Supreme Court, and that tribunal reopened the case. On April 28, it ruled that there is no role for the state courts or for the governor in reviewing partisan gerrymandering by the state legislature, which is dominated by the GOP.
As a result of that ruling, it is now been expected that the legislature will re-adopt its earlier maps, giving the GOP a 10-to-4 majority in House seats.
That is the new decision that lawyers in the case before the U.S. Supreme Court were told to assess in new briefs. Here is the question they will be answering in Moore v. Harper: “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 next Thursday afternoon.
That question was also posed to the Biden Administration’s Justice Department, which has been taking part in the case, opposing the “independent state legislature theory.”
Because the latest ruling by the state Supreme Court turns solely on the meaning of the state constitution, and not on any federal issue under the Constitution or federal law or under the “independent state legislature theory,” it could be that the Justices will now have no authority to decide the case as it exists before them.
As a general rule, the Supreme Court in Washington has no power to review how state courts interpret their own constitutions, unless that raises an issue under the U.S. Constitution or under a federal law.
If the Court, after getting the new filings, decides to end the Moore v. Harper case, the “independent state legislature theory” would not be resolved unless another case emerged with that theory at its center.
There is another partisan gerrymandering case pending at the Supreme Court from Ohio, in which state officials are trying to raise that theory. That case may not provide a good test of that since it is not clear that the state court in that case ruled on it in any way. The Supreme Court ordinarily will not address an issue on which a lower court took no position.
In calling for new briefs in Moore v. Harper, all nine Justices apparently took part in the order. No disqualifications were noted.
All nine Justices have been participating so far in the Court’s handling of the case. Justice Clarence Thomas’s participation has become an issue in the current ethical controversy surrounding the Justices because his wife, Virginia, was actively involved in the effort to help Trump in 2020 – an effort significantly relying upon the “independent state legislature theory.”
(This morning’s front page of the Washington Post had a story of a new financial controversy involving Mrs. Thomas.)
With the new briefs arriving next Thursday afternoon, the Court could take them into account at any time in deciding whether to find a way to decide Moore v. Harper or to cast it aside as beyond their jurisdiction.