Moore v. Harper: Will the Supreme Court give up on Independent State Legislature case from NC?
North Carolina state lawmakers are in disagreement with Democratic President Joe Biden’s administration, state elections officials and various other groups about what the U.S. Supreme Court should do next in a controversial election law case.
In briefs filed Thursday, state Republican lawmakers said the case should continue, even though there is now a question about whether they still have standing to continue pursuing it.
Officials in the state and federal governments, including the U.S. Department of Justice, want the case thrown out. So do most — but not all — of the private voters and groups who had originally sued the legislature over gerrymandering, which ultimately led to this case.
The case, Moore v. Harper, could have massive nationwide implications for the 2024 elections. It has received national attention — mostly from critics who say that if North Carolina’s Republican-led legislature wins, it could spell the end of American democracy by allowing presidential elections to be overturned and by paving the way for unchecked gerrymandering in Congress.
How we got here
The case began as an appeal of a gerrymandering lawsuit that North Carolina Republican lawmakers lost in state court last year. They appealed to the U.S. Supreme Court, arguing that state courts shouldn’t be allowed to rule the legislature’s actions unconstitutional when it comes to federal elections.
The argument, based on an obscure political theory called the independent state legislature doctrine, would require the U.S. Supreme Court to undo generations of legal precedent surrounding the idea of checks and balances. Four of the court’s conservative justices have already indicated they’re open to it; five are needed for a majority.
But the case became much more complicated last month when the North Carolina Supreme Court took the rare step of reversing itself.
Republican lawmakers lost the gerrymandering lawsuit in state court last year, when the court had a Democratic majority. But Republicans retook control in the 2022 elections and the new GOP majority quickly announced it planned to re-hear the case, so it could issue a new ruling. That new ruling gave the Republican-led legislature the win it had originally wanted.
At the same time, it raised a different question: Is there any reason for the U.S. Supreme Court to still hear Moore v. Harper, since the case is premised on Republicans having lost in state court?
Republicans respond
There are numerous parties to this case; the only one that wants it to continue are the leaders of the North Carolina General Assembly who brought it in the first place. They say it doesn’t matter that they have now won the state-level case, even though this federal case is based on them having previously lost that state lawsuit.
All the issues have already been briefed and argued, they wrote, and it’s an important question that affects not just North Carolina but the whole country, so the Supreme Court should just go ahead and rule on it.
They said other states are likely to bring similar cases to the court next year, unless the court rules on this case now. And deciding the issue now gives the court time to think through its decision and carefully write its opinion, rather than potentially feeling rushed as next year’s presidential election gets nearer.
“This case remains a good vehicle for deciding the Elections Clause issues it presents,” the legislature’s attorney, David Thompson, wrote, adding that “even if this court were to grant another cert petition that presents the same issues, the ordinary course would be to argue the case next term and decide it squarely in the midst of the 2024 election cycle—exactly the sort of timing pressure that this case does not carry.”
NC elections officials respond
The North Carolina State Board of Elections says a win for the GOP would cause chaos in future elections by possibly leading to two different sets of rules for voting. Someone might, for example, be allowed to vote for governor but be banned from voting for president.
The board said Thursday the case should be dismissed: “This court can no longer grant [the legislature] any meaningful relief because the state supreme court has already given them everything they wanted.”
Biden Administration responds
The U.S. Department of Justice took the rare step of asking to intervene in this case last year, so that it would have the opportunity to argue against North Carolina’s legislative leaders at the oral arguments.
On Thursday, Solicitor General Elizabeth Prelogar said that since the state Supreme Court has now reversed itself and given the legislature a win, it no longer makes sense for this case to exist. “In our view, that order moots the question this Court granted certiorari to decide because it means that the Court’s resolution of that question could have no effect on the outcome of this case,” she wrote in a brief to the court.
Anti-gerrymandering groups respond
Three private groups had sued the legislature over gerrymandering following the 2020 Census. Two of them — a coalition of Democratic voters and the environmental group League of Conservation Voters — agree with the state and federal officials that the case should be dismissed. The third, Common Cause, wants to see this case through and have the U.S. Supreme Court issue a ruling now.
Common Cause wrote almost the exact same argument the state legislature did: The Supreme Court is going to keep getting these cases from Republican-led states, so it might as well rule now rather than waiting until the 2024 election is in full swing. But while the two sides made the same argument, they disagree on which of them should win in the end.
Common Cause: “The U.S. Supreme Court should toss the nonsensical ‘independent state legislature theory’ into the dustbin where it belongs — and there’s no better time than now when we aren’t on the eve of a major election,” Bob Phillips, Executive Director of Common Cause North Carolina, wrote in a press release announcing the group’s position.
North Carolina League of Conservation Voters: "The case is moot, as there is no longer any relief this Court could provide that Petitioners have not already obtained from the North Carolina Supreme Court. Therefore, this court lacks jurisdiction.”
Democratic voters: They wrote that they have always believed the U.S. Supreme Court had no authority to hear this case, and “The North Carolina Supreme Court’s April 28, 2023, decision only confirms as much.”
