SCOTUS wants answers in Moore v. Harper after NC gerrymandering reversal
Days after the North Carolina Supreme Court made the stunning decision to reverse itself on a high-profile political lawsuit with national implications, the U.S. Supreme Court wants to know what it should do in a related case.
In that case, called Moore v. Harper, the state's Republican legislative leaders argued to the U.S. Supreme Court that state courts shouldn’t be allowed to strike down any election laws that affect federal elections, not just in North Carolina but anywhere in the country. The case began as an appeal GOP lawmakers filed after they lost a 2022 gerrymandering case in the state’s highest court.
Last week, however, the state court’s new GOP majority undid the ruling that underlies the U.S. Supreme Court case. That gave Republicans a win in the state's highest court, and simultaneously threw the nation's highest court into confusion.
The U.S. Supreme Court on Thursday ordered the lawyers on both sides to answer the question of what, if anything, it can still rule on. They have a week to weigh in, with responses due by 2 p.m. on May 11.
The scenario is further complicated by the fact that there are multiple versions of the state-level case, and that in the nation's highest court, oral arguments are already done. The case is over; the justices just need to rule on it — or decide if they even can.
Independent State Legislature theory
Moore v. Harper is based on the same legal theory, called the Independent State Legislature doctrine, that former Republican President Donald Trump unsuccessfully tried using to remain in power despite losing the 2020 election.
It's a fringe theory that says state legislatures should have near-total authority over any rules for federal elections — that none of their actions or laws regarding federal elections can be ruled unconstitutional in state court.
Trump's efforts to use that theory to manipulate the Electoral College vote count in 2020 failed. But critics fear that if the Supreme Court signs off on the theory now in Moore v. Harper, a future presidential candidate could succeed.
The implications go further than just presidential elections.
A win for North Carolina legislators could greenlight unfettered partisan gerrymandering in every state in the country, even those that have attempted to rein in gerrymandering with independent redistricting committees.
It could also allow lawmakers to implement rules for federal elections that are unconstitutional, and could still be struck down for state elections, just not federal elections.
That would then lead to a system in which people might be eligible to vote for governor but not president, for example, or would have different rules for voting in each contest, say critics including the North Carolina State Board of Elections and the U.S. Department of Justice.
State Republican leaders say they aren’t asking for a sweeping ruling that could let future presidential elections be overturned, and instead just want a more narrow ruling giving them more power to act without facing lawsuits in state court.
But the Supreme Court can rule however it wants in the case, regardless of what GOP leaders say they want. At least four of the court’s conservative justices have previously expressed support for the theory, and only five are needed for a majority.
