The U.S. Supreme Court asked lawyers in the case of Moore v. Harper to submit new briefs in the case by March 20 after the North Carolina Supreme Court granted a rehearing of the underlying redistricting case.
The high court has asked lawyers in the case to submit short briefs, no longer than 10 pages, on “the effect on this Court’s jurisdiction” following “the North Carolina Supreme Court’s February 3, 2023 order granting rehearing, and any subsequent state court proceedings.”
The request signals that the U.S. Supreme Court is considering declaring the case moot and dismissing it without issuing a decision since the North Carolina Supreme Court is hearing arguments that could alter the underlying facts. The high court originally heard arguments in the case on Dec. 7.
If the U.S. Supreme Court dismisses the case, it would save the justices from issuing a decision on the highly divisive independent state legislature theory.
North Carolina Republicans brought suit in Moore v. Harper after the North Carolina Supreme Court tossed their 2021 congressional redistricting plan as an unconstitutional partisan gerrymander. The state GOP argued that state courts have no right to judge actions made by state legislatures related to redistricting or election law because the U.S. Constitution states that “the Legislature” sets the “time, place, and manner” of federal elections.
Under this independent state legislature theory, state courts would have no ability to review election laws or redistricting plans passed by state legislatures. Since the U.S. Supreme Court already prevented federal courts from reviewing partisan gerrymandering complaints in a prior case involving North Carolina redistricting, this would mean that state legislatures would be unrestricted in their ability to gerrymander congressional districts. And they would only be bound by federal courts if they sought to greatly restrict voting rights or access. More extreme versions of the theory would even eliminate gubernatorial vetoes of election laws and district maps.
This theory has been widely panned by figures from across the ideological spectrum, including retired conservative judge Michael Luttig, former Attorney General Eric Holder, conservative Federalist Society co-founder Steven Calabresi, Democratic Party lawyer Marc Elias and ex-Republican National Committee lawyer Ben Ginsburg, among many others.
The case came to the U.S. Supreme Court after conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh signaled their interest in the theory in the final weeks of the 2020 election.
But Republican-aligned judges won two seats on the North Carolina Supreme Court in the 2022 midterm elections, flipping control from liberals to conservatives. State GOP legislators asked the reconfigured court to rehear their case challenging the prior court’s decision striking down their congressional district map, and the new court agreed.
That put the U.S. Supreme Court in a bind. How could justices rule on a case when the underlying facts are being reheard at the same time? Or it gave the court an easy out on a thorny issue.
If the high court dismisses this case, it does not reverse the four conservative justices’ prior statements of interest in the theory. That’s enough justices to take up a similar case in the future.