The Biden Administration, implying that the Supreme Court may have jumped too hastily into the middle of a historic constitutional dispute over federal elections, told the Justices on Monday that they may now have lost the power to decide it.

The government’s position, filed by the Justice Department legal office that the Court regularly relies upon for advice, came as one of six new filings in a North Carolina congressional redistricting case that involves a deeply controversial theory about state government power over elections to national offices – the Presidency as well as Congress.

The new briefs, responding to a request by the Court earlier this month for some legal guidance, took conflicting positions on what should happen next with the case of Moore v. Harper. 

That case has become the central focus of the theory that state courts cannot put any limits on how state legislatures control voting for federal officials.  (The theory argues that state legislatures in writing federal election laws are independent of any checks by state courts – even limits imposed by state constitutions.  State legislators relied on that in this case, and former President Trump and his followers tried to rely on it to overturn his defeat in the 2020 election.)

The Supreme Court held a hearing on the Moore case on December 7 and has since been studying privately how to decide it.  However, the North Carolina Supreme Court decided on February 3 to rehear the case, and that has raised questions about whether that displaces – or at least complicates — Supreme Court review.

Federal law gives the Supreme Court authority to review state court decisions on federal law issues, but only if the state rulings were final.  After the North Carolina tribunal, with a newly elected Republican majority, voted to rehear the case, the Supreme Court asked lawyers on all sides in Moore v. Harper  what effect, if any, that would have on the Justices’ work toward a decision.

From the time that case reached the Supreme Court early last year, and even at the time the Justices granted review, questions have hung over the case about whether the ruling the Justices were reviewing were actually final.  Several of the Justices, however, had made clear publicly that they were eager to review the controversy over the theory, and review was granted last June.

The Court, responding on March 3 to the new developments in North Carolina, raised on its own the issue of its jurisdiction. Without jurisdiction, it cannot rule.

These are the positions argued in the new filings:

• The Justice Department said the Court may have been wrong in thinking at the time it granted review that the state actions were final, but it said that probably is no longer true. The Department concluded that the Court now lacks jurisdiction.  It added that the situation is without precedent, so it conceded that there may be other views on the issue.  It did express worry about having a state court action undercut the Supreme Court’s authority.
• The Republican state legislators who had taken the case to the Supreme Court and have been relying on the controversial theory about their power over election laws argued that the state court action rejecting that theory is now final, so the Justices could go ahead and rule. The state court, this filing said, no longer has authority to decide differently on the theory (even though, in proceedings recently in the state court, the GOP lawmakers have urged the state court to limit the impact of its rejection of the theory).
• State officials, who support what the state court had done against the theory, contended that the Supreme Court no longer has jurisdiction, and should dismiss the case outright. Nothing the state court has done up to now is final, it asserted.
• Common Cause, a liberal advocacy group (which opposes the theory and the kind of partisan gerrymandering that state courts found in the congressional redistricting map created by the legislature) strongly urged the Court to go forward on the premise that the state court ruling was final against the independent legislature theory. It argued that the dispute over that question was crucial to democracy, and should be decided now, rather than being put off until it could become an emergency for the 2024 elections.
• The individual North Carolina voters who had joined with Common Cause in challenging the theory filed a one-page letter brief, contending that the Court has lost jurisdiction. But, it boldly added, if the Court intends to move ahead to make a decision anyway, it should only do so to strike down the theory.
• A separate group of voters of racial minorities, in a two-page filing, reminded the Court that they had tried to dissuade the Justices from taking up this case at all, and argued that it lacks jurisdiction now.

Together, the six filings – splitting 3-to-3 on the jurisdiction issue — laid before the Court a complex array of precedents and arguments that, overall, suggested that Moore v. Harper has become such a puzzle that the Justices might simply decide that they had been wrong in getting involved at all, at this stage.

The Court does have a way to end its review quickly, by issuing a one-line order dismissing the case as “improvidently granted” – in essence, a concession that it should have bypassed this particular case in the first place.

But the Justices do not have to do anything, at least in the short term.  They could sit on the case until they see what the state court does with its new review, and then decide what to do after that.  But the Justices have been treating this case, from the start, as important – primarily because of the historic importance of the independent legislature theory.

They do have a separate case, from Ohio, that has been kept on hold pending the outcome of the North Carolina case, and they could vote to hear it as a replacement.  But, unless put on an extremely fast track, that case would not be likely to be processed during the current Court term, or even early in the next term.  That timetable could put it before the Court right in the midst of the early stages of the 2024 elections – the primary season.