Lawyers for legislature, executive branch take opposing views in latest Moore v. Harper filings

Supreme Court of the United States

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  • The N.C. Justice Department and lawyers representing Republican legislative leaders take opposite stances in new Moore v. Harper briefs at the U.S. Supreme Court.
  • Lawyers for N.C. Attorney General Josh Stein's Justice Department urge the court to dismiss the high-profile redistricting case. Lawmakers want the court to keep the case and render a decision.
  • Among plaintiffs, Common Cause urged the U.S. Supreme Court to keep the case. Two other groups did not urge the court to keep or dismiss the case.
  • All parties were responding to the high court's order for briefing on the impact of the N.C. Supreme Court's decision to rehear a related redistricting case.

The N.C. Justice Department argues that the U.S. Supreme Court should dismiss the Moore v. Harper redistricting case. But lawyers representing state legislative leaders urge the court to keep the case and render a decision.

Three sets of plaintiffs in the case also set out contrasting views. Common Cause labeled dismissal of the case “premature at best,” while two other groups repeated their concerns about the U.S. Supreme Court taking the case in the first place.

Each group responded to the high court’s Monday deadline for new Moore v. Harper briefing. Justices asked competing parties in the case to describe how last week’s N.C. Supreme Court rehearing in a related redistricting case would affect the U.S. Supreme Court’s work.

The nation’s highest court heard oral arguments in Moore v. Harper on Dec. 7. Court watchers had been expecting a ruling by June. Justices could decide whether to limit state courts’ review of congressional election maps drawn by state legislatures.

Republican N.C. legislative leaders have argued that the U.S. Constitution’s Elections Clause should have blocked state courts from throwing out the General Assembly’s election map for North Carolina’s 14 seats in the U.S. House of Representatives. Legislative critics countered that lawmakers are pursuing an Independent State Legislature Theory that would open the door to electoral mischief.

The state Supreme Court’s decision to reconsider its December ruling in the related Harper v. Hall case “confirms that the decisions on review here are not final,” wrote Sarah Boyce, deputy attorney general and general counsel for N.C. Attorney General Josh Stein, a Democrat. “Further proceedings remain in state court. … This Court therefore lacks jurisdiction … and should dismiss this case.”

Legislative leaders disagree. The rehearing “has no effect on this Court’s continued jurisdiction,” wrote David Thompson, representing Republican legislative leaders. “This Court granted certiorari to review two other decisions of the North Carolina Supreme Court, neither of which will be subject to rehearing.”

The U.S. Supreme Court is reviewing the N.C. Supreme Court’s February 2022 decision “invalidating the North Carolina General Assembly’s original congressional redistricting
map,” along with an order that denied lawmakers’ request to block a court-drawn replacement map.

“By granting certiorari to review Harper I, this Court has properly (and continues to
properly) exercise jurisdiction over both the North Carolina Supreme Court’s decision that, despite the federal Elections Clause, it could invalidate Petitioners’ original map and its decision that the North Carolina courts could draw their own map as a replacement,” Thompson wrote.

“This Court is … fully possessed of jurisdiction to decide all of the issues this case
presents based on the North Carolina Supreme Court’s final judgment in Harper I and the stay denial,” he added. “The North Carolina Supreme Court’s grant of rehearing in Harper II and any proceedings that follow it cannot change that fact.”

Among the plaintiffs challenging N.C. election maps, only Common Cause filed a brief definitively urging the U.S. Supreme Court not to dismiss the case.

The state Supreme Court’s recent actions “have no effect on the Court’s jurisdiction, and a dismissal of the Petition would be premature at best,” wrote attorney Neal Kumar Katyal.

“This Court should hold that it has jurisdiction to decide the vital constitutional question presented in this case, regardless of the North Carolina Supreme Court’s decision on rehearing,” Katyal added.

Lawyers representing the so-called “Harper plaintiffs” and the N.C. League of Conservation Voters did not go as far as Common Cause in urging a decision in Moore v. Harper. Both concluded that the state Supreme Court rehearing has no practical effect on the U.S. Supreme Court’s jurisdiction. Both groups had argued against the high court taking up the case last year.

U.S. Solicitor General Elizabeth Prelogar filed a separate brief that took no firm stance for or against the high court issuing a ruling in Moore v. Harper.

“The present posture of this case is unusual, and we are not aware of any precedent addressing the application of Section 1257(a) and Cox in circumstances like these,” wrote Prelogar, who argued on behalf of the federal government during the U.S. Supreme Court’s Dec. 7 oral argument.

The U.S. Supreme Court had asked parties to base their arguments on 28 U. S. C. §1257(a) and a 1975 court precedent in Cox Broadcasting Corp. v. Kohn. Section 1257(a) addresses when the U.S. Supreme Court can address “final judgments and decrees rendered by the highest court of a State.” The Cox case set a precedent for making determinations about final state court judgments.

“In the view of the United States, the North Carolina Supreme Court’s grant of rehearing makes it difficult to conclude that the state court has entered a ‘[f ]inal judgment[]’ reviewable by this Court under 28 U.S.C. 1257(a),” she added. “But we acknowledge that it is anomalous for a state court’s action to divest this Court of jurisdiction after the Court has already granted certiorari (and, in this case, heard oral argument).”

While Prelogar’s brief outlines arguments that could help the Supreme Court avoid losing jurisdiction over a similar case in the future,  “we do not believe that those arguments warrant the continued exercise of jurisdiction under the circumstances presented here,” she wrote. “But we acknowledge that no precedent squarely governs this issue, and that the Court could reasonably reach a different conclusion.”

Prelogar focuses on the potential impact of the U.S Supreme Court choosing not to decide Moore v. Harper.

“We recognize that a conclusion that the North Carolina Supreme Court’s grant of rehearing
deprives this Court of jurisdiction would come at a significant cost,” she wrote. “A grant of certiorari by this Court reflects a judgment that a case presents an important federal question that the Court should resolve, and the interest in securing that resolution is frustrated when post-certiorari developments prevent this Court from issuing a decision. Such developments also result in a waste of this Court’s scarce resources — especially where, as here, those developments come late in this Court’s consideration of a case.”

“There thus may be reasons to hesitate before concluding that subsequent state-court action has divested this Court of jurisdiction,” Prelogar added. Her brief listed principles that could help guide the court’s decision.

“In our view, those principles do not warrant the continued exercise of jurisdiction in the particular circumstances presented here. But we recognize that the issue is a novel one, and that this Court might reasonably reach a different conclusion,” Prelogar wrote.

There is no word on when the U.S. Supreme Court will decide whether to press forward with a Moore v. Harper decision or dismiss the case.