A series of new filings today in a historic Supreme Court case on voting rights put a hard question before the Justices: how eager are they to settle now, before the 2024 elections, a core constitutional issue about federal elections?
Lawyers on all sides of the North Carolina congressional elections case, Moore v. Harper, on Thursday answered the question posed to them last week by the Justices: whether there remains anything for the Court to decide.
There were six new briefs, and four of them told the Court that it had lost jurisdiction to decide the case, that a new decision by the North Carolina Supreme Court made “moot” – no live issue remains – the dispute in Moore v. Harper, which the Justices have been studying for months.
Among the briefs making that point was one by the Biden Administration’s Justice Department, which the Court often regards as a reliable adviser on questions before the Court.
However, the two longest of the new briefs differed with the other four, laying out arguments that not only is the case not dead, but also that there are strong reasons why the case should be decided now rather than have the issue come back, under emergency pressure, in the midst of next year’s federal election cycle.
Those differing briefs came from opposite sides in the case – one from the Republican state legislators who took the case to the Supreme Court, and one from one of their opponents: the liberal advocacy group, Common Cause.
Four of the Justices have already said, as this case began to develop, that the basic constitutional issue at its center is important and needs to be resolved. If they are determined to go ahead and decide it, those two briefs could give them legally plausible reasons for keeping it alive. If the Court goes along with that, the case could be decided before the current Court term ends next month or early in July.
What is at stake in the North Carolina case could not be more important to the future of federal elections – that is, electing members of the U.S. House of Representatives and electing Presidents. That’s because the constitutional theory at issue – the so-called “independent state legislature theory” – would end the power of state courts to provide a check and balance to state legislatures’ re-writing of laws on federal elections.
That theory, long dormant in U.S. history, has been revived mainly by Republican-controlled state legislatures, as they seek to assert new power to decide who gets to vote for the House and the Presidency, and how.
While this specific case involves elections to the House of Representatives, the theory was also put forth by former President Donald Trump and his allies as they tried, unsuccessfully, to undo his loss in the 2020 election. A key part of that plan was to get GOP-controlled state legislatures to submit new Electoral College slates for Trump, taking away electoral votes for President Biden.
The Supreme Court held a lively hearing on that theory in the North Carolina congressional case last December 7, and has been working in private since then on a decision. There is no word, outside of the Court, on how the Justices may be leaning in the case – other than the expressed view of four Justices about the importance of deciding on the validity of the controversial theory.
The Justices’ work on the case has become entangled in continuing activity in the North Carolina state courts over whether the legislature had the authority, without review by the state Supreme Court under the state constitution, to draw new maps to assure that Republicans won most of the state’s seats in the House of Representatives.
Maps drawn by the legislature, after the 2020 census, would have assured the GOP that its candidates would probably win ten of the 14 seats, even though statewide voting patterns in North Carolina show the Republican and Democratic parties turn out voters in roughly equal proportions.
After those maps were ruled invalid by the state Supreme Court last year, leading the GOP lawmakers to take the case to the Justices in Washington, new maps drawn by a state court did result in the 2022 elections in a 7-to-7 split in the North Carolina’s delegation in the House of Representatives. Those maps were designated for that year’s election only.
Since then, however, the makeup of the North Carolina Supreme Court has shifted, to a 5-to-2 GOP majority, and it ruled last month that state courts have no authority to monitor how the legislature draws congressional election maps.
Under that ruling, it appears that the 10 GOP/four Democratic lineup for House seats would be put into effect and used in the 2024 election, and beyond (until there is a new census in 2030).
In the new briefs advising the Court on the impact on Moore v. Harper, lawyers for the Justice Department, for individual voters who had successfully challenged the partisan maps, officials of the state government, and a group of minority voters all took the same position: the pending case is dead, the rulings of the state court that the Justices are reviewing have been taken off the books, and so the Court has no “live” controversy before it.
Disputing that argument were lawyers for the GOP legislative leaders and for Common Cause. In detailed legal arguments, they laid out a procedural path that would allow the Justices to go ahead and rule on the controversial theory at issue.
The earlier state court ruling that had invalidated the 10-to-4 House gerrymandering, those briefs said, is still intact procedurally under North Carolina law and thus remains in direct dispute between the opposing sides.
The GOP legislators’ points came in support of their argument that the Justices should now overrule the earlier rejection in state court of the “independent state legislature theory,” thus putting into operation the 10-to-4 gerrymandered maps.
Common Cause made similar arguments, but in the interest of urging the Court that the theory before it must be resolved sooner or later, and that it is far better to do it now, after there has been full legal briefing and a hearing and deliberation on Moore v. Harper rather than waiting for another case from another state to develop next year, an election year.
For the most part, each of the six new briefs made their arguments without trying to anticipate what other briefs would be saying. But the one filed on behalf of voters who originally challenged the gerrymandered maps suggested that the argument that the case remains alive at this stage was “frivolous.”
Since the Justices have considerable discretion to decide their own jurisdiction, they can accept, reject or modify any of the arguments made to them in the new filings. It is unclear how soon they will react to those briefs.
