Government’s top U.S. Supreme Court lawyer wants say in N.C. redistricting case

U.S. Solicitor General Elizabeth Prelogar (image from justice.gov)
  • The U.S. solicitor general wants to take part in oral arguments during the Moore v. Harper redistricting case at the U.S. Supreme Court.
  • The case could help determine the role of state courts in revising or rejecting congressional election maps drafted by legislatures.

The federal government’s top U.S. Supreme Court lawyer wants to jump into a case dealing with North Carolina’s congressional election map. U.S. Solicitor General Elizabeth Prelogar has asked the nation’s highest court for time to speak during oral arguments in the case.

The nation’s highest court will consider the Moore v. Harper case on Dec. 7. Prelogar filed an amicus, or friend-of-the-court, brief Wednesday on behalf of the federal government. Prelogar’s brief was one of 40 briefs filed on Wednesday in the case. Each challenges N.C. legislative leaders’ arguments.

Prelogar also asked for 15 minutes of argument time during the Dec. 7 proceedings. All participants in the case have agreed to a request to extend the Supreme Court’s standard 60-minute argument time by 10 minutes. Left-of-center plaintiffs have asked for a further expansion to 90 minutes, giving opposing sides 45 minutes each.

Under that proposal, Prelogar would get 15 minutes, while lawyers representing the executive branch of N.C. state government would get 15 minutes, and plaintiffs would get the remaining 15 minutes. Lawyers representing state legislative leaders would get 45 minutes on the other side of the case.

Lawmakers argue that the N.C. Supreme Court overstepped its authority earlier this year when it rejected the General Assembly’s new map for congressional elections. Lawmakers cite the Elections Clause of the U.S. Constitution, which says legislatures will set the “times, places, and manner” of federal elections.

“Text, practice from the Founding to today, and a century of this Court’s precedent confirm that the Clause takes state legislatures as it finds them — subject to state constitutional constraints and state judicial review,” according to Prelogar’s brief. “And even if that were not so, nothing in the Clause would prohibit a state legislature from choosing to be bound by those constraints, as the North Carolina General Assembly has done here.”

“The Elections Clause makes clear that when state legislatures prescribe the time, place, and manner of federal elections, they engage in ordinary lawmaking,” Prelogar wrote. “Nothing in the Clause’s text suggests that the Framers intended to unmoor that lawmaking process from state constitutional checks and balances.”

Legislative leaders submitted their own arguments to the U.S. Supreme Court in August.

“The text of the Constitution directly answers the question presented in this case,” lawmakers’ lawyers wrote. “The Elections Clause provides, in unambiguous language, that the manner of federal elections shall ‘be prescribed in each State by the Legislature thereof.’ Yet in the decision below, the North Carolina Supreme Court invalidated the state legislature’s duly enacted congressional map and decreed that the 2022 election and all upcoming congressional elections in the State were not to be held in the ‘Manner’ ‘prescribed … by the Legislature thereof,’ but rather in the manner prescribed by the state’s judicial branch.”

“It is obvious on the face of the Constitution that this result is irreconcilable with that document’s allocation of authority over federal elections,” legislative leaders argued. “As this Court recently explained, ‘[t]he Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.’ Their approach did not assign any role in this policymaking process to state judges, and the decisions by the courts below cannot stand.”

There is no deadline for the Supreme Court to act on Prelogar’s request. Court observers expect a decision in Moore v. Harper near the end of the Supreme Court’s term next June. The case could influence the N.C. General Assembly as it redraws the congressional election map for 2024.

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