A major constitutional dispute that the Supreme Court is now reviewing – one of history’s most important tests of voters’ rights — may be ended without a ruling by the Justices, because of new developments in the state where that case began – North Carolina.
On Friday, a newly installed majority of Republican members of the North Carolina Supreme Court voted to reconsider that court’s own 2022 decision that is now awaiting a ruling by the Supreme Court in Washington. It seems quite likely that this move could change the case so much that there would be nothing left for the Justices to do but step aside.
The case, now known by its title, Moore v. Harper, provides a fundamental test of whether the federal Constitution gives state legislatures power — unchecked by their states’ courts — to draw up new districts for voting for members of the U.S. House of Representatives, even if the resulting maps are designed explicitly to give one political party a decisive advantage at the polls.
The North Carolina case reached the Supreme Court as a test of this “independent state legislature doctrine.”
The long-standing practice of “partisan gerrymandering,” has been made far easier in modern times because computer population and voting data is now so refined and granular that it enables politicians to decide who among actual voters will be placed in election districts to maximize one party’s chances of victory in choosing members of the House of Representatives and members of state legislatures.
The Supreme Court, in a famous ruling in 2019, ruled that federal courts have no power to review the constitutionality of “partisan gerrymandering” because it is a political process without standards that courts can apply. That meant that the only remaining check on “partisan gerrymandering” would be in state courts applying their state’s constitutions.
In Moore v. Harper, the North Carolina Supreme Court – last year, then having a 4-to-3 Democratic majority – struck down the state legislatures’ 2021 House of Representatives maps as too partisan, and ordered new districts that resulted last November in the Democrats and Republicans each winning seven seats in the state’s House delegation of 14.
When North Carolinians’ voted last November, however, they chose two new Republican justices for the state court, giving the GOP bloc a 5-to-2 majority. It is that majority which, over the dissents of the two remaining Democrats, has just voted to reconsider the dispute. The state court had been asked last month to rehear the case by GOP leaders of the state legislature – the same ones who had earlier appealed to the Supreme Court.
The main point that the GOP lawmakers made in asking for a rehearing was their argument that the state constitution provides no role, whatever, for the state courts to review the validity of the process of drawing new legislative districts, at either the state or House of Representative levels. The prior ruling striking down the gerrymandering House map was based explicitly on the state constitution’s guarantees of free and fair voting rights.
If the state Supreme Court now overturns the prior interpretation, that would simply erase any federal constitutional question for the nation’s highest court to decide: the highest tribunal has no power to second-guess how state courts interpret their own state constitutions, unless they do so in ways that conflict directly with the U.S. Constitution. A new state Supreme Court reading of the state constitution to assign full power over districting to the legislature would be within its full authority.
Timing could become a factor in the wake of the developments in Raleigh on Friday. The state Supreme Court will be holding a hearing on the rehearing question in March, and a decision there might emerge before the Supreme Court Justices have reached a final decision on the version of the case that they heard in December.
It has generally been expected that the question before the Supreme Court in Moore v. Harper was a difficult one for the Court, likely not to be decided until the closings days of the Justices’ current Court term, in June or even July.
Because the rehearing in the state tribunal has such promise for the Republican legislative leaders’ effort to protect their redistricting powers, it seems quite likely that their lawyers will now advise the Justices in Washington about what is now unfolding in the state capital. They might even suggest that the Court formally hold off any decision in Moore v. Harper, to await the results of the new state court’s rehearing process.
The 5-to-2 vote to reconsider the controversy fell strictly along the partisan lines of the seven Justices. Two Democratic justices filed a vigorous dissent, arguing that the vote ran counter to more than two centuries of tradition in the North Carolina court.
Besides voting to rehear the case, the majority threw out a filing by the civil right advocacy group, Common Cause, asking that the state court simply dismiss the state lawmakers’ new challenge. The majority said that Common Cause had no right even to file its plea for dismissal.
