In new filings, lawyers disagree over whether court should decide major election case

The lawyers involved in a major election law case once again disagreed on Thursday about whether the Supreme Court has the power to reach a decision in the case in light of a ruling last month by the North Carolina Supreme Court in the underlying dispute. Three sets of challengers and the Biden administration, which filed a “friend of the court” brief supporting the challengers, urged the justices to dismiss the case. But a group of Republican legislators, who prevailed in the new state supreme court ruling, insisted that the justices should go ahead and decide the case – a view shared by Common Cause, one of the group’s opponents. 

In December, the justices heard argument in Moore v. Harper, in which a group of Republican legislators from North Carolina argued that the “independent state legislature theory” – the idea that the Constitution’s elections clause gives state legislatures nearly unfettered authority to regulate federal elections – barred the North Carolina Supreme Court from setting aside a congressional map adopted by the state’s legislature. But late last month, the North Carolina Supreme Court reversed its earlier ruling, holding that it does not have the power to review the challenges to the map at all.

The North Carolina Supreme Court’s April 28 decision prompted the Supreme Court to request additional briefing on the impact of that decision. In a four-page brief filed on Thursday afternoon, the Biden administration told the justices that they should dismiss the case. The Supreme Court, U.S. Solicitor General Elizabeth Prelogar explained, granted review to decide whether the U.S. Constitution’s elections clause bars state courts from considering whether the redistricting map enacted by the North Carolina legislature violates the North Carolina constitution. The question, Prelogar continued, comes to the court in the context of the challengers’ claims that the new congressional map adopted by the state legislature violated the state constitution’s ban on partisan gerrymandering. But the North Carolina Supreme Court threw out those claims last month, Prelogar noted, holding that there is no role under the North Carolina constitution for state courts to consider partisan gerrymandering claims. Therefore, Prelogar reasoned, a ruling by the U.S. Supreme Court on the “independent state legislature” theory would have no effect on the challengers’ claims.

Three sets of challengers – the North Carolina League of Conservation Voters, the North Carolina Department of Justice, and individual voters – echoed Prelogar’s admonition to dismiss the case. They stressed, among other things, that the 2022 decision that the justices are currently reviewing is not the kind of a final judgment that federal law requires for the Supreme Court to intervene in state court proceedings – as evidenced by the fact that the state supreme court reversed it. And Sarah Boyce, North Carolina’s deputy attorney general, argued that the “independent state legislature” theory has become a “purely theoretical” question as a result of the state supreme court’s recent ruling. 

A fourth challenger, Common Cause, took a different tack, urging the justices to go ahead and decide the “independent state legislature” theory question. The potential impact of that theory, lawyer Neal Katyal wrote, is massive, calling into question the validity of many state constitutional provisions and election laws. The justices should weigh in on its validity before the 2024 elections, Katyal contended, to give election officials time to prepare.

In Katyal’s view, the state supreme court’s recent ruling “flatly rejects the independent state legislature theory” and instead requires the Republican legislators to “create a new redistricting map that is limited by the constraints imposed by the North Carolina Constitution and that will be subject to judicial review in the North Carolina courts.” But if the justices were to rule in the legislators’ favor, Katyal observed, then they could draw maps “unconstrained by the North Carolina Constitution and without review by North Carolina courts” – which, in his view, shows why the justices’ ruling would still have consequences for the legislators.

The Republican legislators who sought Supreme Court review also maintained that the state court’s recent ruling had no effect on the justices’ power to decide the case. Unlike Katyal, they insisted that the North Carolina Supreme Court’s April ruling did not decide the “independent state legislature” theory. Instead, they argued, the state court merely held that partisan gerrymandering claims brought under the state constitution are not a question that North Carolina courts can review. Therefore, the legislators contended, the “independent state legislature” issue has “‘survived’ the state-court proceedings and still requires decision” by the justices.

But Common Cause and the legislators agreed that even if the case were moot – that is, no longer a live controversy – the justices should still issue a decision because the “independent state legislature” question will almost certainly return to the Supreme Court again. Therefore, they added, the justices should resolve the question now rather than taking the chance that it will come to them in an emergency appeal, which they would have to resolve on an expedited basis, potentially in the middle of an election.

With the new briefing now complete, a decision in the case (or an order dismissing the case) is expected sometime before the end of June. The justices are next scheduled to issue opinions on Thursday, May 18.

This article was originally published at Howe on the Court.