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Justices call for further briefing in major election law case

The Supreme Court on Thursday afternoon asked lawyers involved in a major election law case to weigh in on whether the court can still hear the case in the wake of a recent ruling by the North Carolina Supreme Court, which reversed its earlier decision in the underlying redistricting dispute that sparked the case.

In a brief unsigned order, the justices instructed the lawyers involved in the case to file new briefs, addressing the effect of the North Carolina Supreme Court’s ruling, by 2 p.m. on May 11. Once those briefs have been filed, the justices could dismiss the case (as one set of challengers has already suggested they should), or they could continue to decide the case on the merits.

The timing of the justices’ decision likely could depend on the result that it reaches. An order simply dismissing the case could come relatively quickly after the supplemental briefs are filed on May 11, although such an order could take longer if it is accompanied by separate dissents or statements from one or more justices. In any event, the justices are expected to act on the case by late June or early July, when they begin their summer recess.

Thursday’s order followed last week’s 5-2 ruling by the state supreme court ruled last week that it lacked the power to review claims that the state’s new congressional map was the product of partisan gerrymandering – that is, drawing districts to favor one political party at another’s expense. The state supreme court’s decision overruled a 2022 decision, issued when the court had a 4-3 Democratic majority, holding that the map was a partisan gerrymander, which violated the state constitution’s guarantee of free elections.

The Republican legislative leaders who had spearheaded the adoption of the original map came to the Supreme Court last year. They argued that the state supreme court’s decision setting aside the map violated the “independent state legislature” theory – the idea that the Constitution gives state legislatures nearly unfettered power to regulate federal elections.

The Supreme Court agreed to take up the legislators’ case and heard argument in December. But before that argument, Republicans picked up two seats on the state supreme court in the November 2022 elections. And on Feb. 3, the newly reconstituted state supreme court agreed to rehear the partisan gerrymandering case.

In an initial round of briefs submitted in March, lawyers in the case expressed a range of views on the effects of the North Carolina Supreme Court’s announcement that it would reconsider the case. One set of challengers urged the justices to dismiss the case, while another set of challengers and the Republican legislators argued that the U.S. Supreme Court still has the power to decide the case.

In a lengthy opinion released on April 28, the state supreme court threw out the challengers’ partisan gerrymandering claims, ruling that it does not have the power to review such claims. The state’s constitution, Chief Justice Paul Newby explained in his opinion for the majority, gives the state’s legislature the sole power over redistricting. Like the U.S. Constitution, Newby added, the North Carolina constitution does not provide any guidance for courts to evaluate claims of partisan gerrymandering.  Any effort to do so, Newby stressed, would require courts to substitute policy judgments instead.

Justice Anita Earls dissented. She accused her colleagues in the majority of “ignore[ing] the uncontested truths about the intentions behind partisan gerrymandering and erect[ing] an unconvincing façade that only parrots democratic values in an attempt to defend its decision.”

Thursday’s order instructed lawyers involved in the case to file new briefs, addressing the effects of the North Carolina Supreme Court’s ruling, by 2 p.m. on Thursday, May 11.  

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices call for further briefing in major election law case, SCOTUSblog (May. 4, 2023, 7:38 PM),