Moore v Harper parties split on whether US Supreme Court should drop case

Supreme Court of the United States

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  • Parties in the Moore v. Harper redistricting case have split on the issue of whether the U.S. Supreme Court should decide the case.
  • Republican state legislative leaders and plaintiffs tied to the left-of-center activist group Common Cause urge the high court to decide the case before its term ends in late June.
  • Two other sets of plaintiffs, N.C. Attorney General Josh Stein's state Department of Justice, and the U.S. solicitor general all call for the Supreme Court to dismiss the case as moot.
  • The N.C. Supreme Court issued an April 28 ruling reversing an earlier decision on partisan gerrymandering that triggered state lawmakers' petition to the U.S. Supreme Court last year.

Parties involved in the high-profile Moore v. Harper redistricting case offered a split decision Thursday on whether the U.S. Supreme Court should dismiss the case. The high court asked lawyers linked to the case to assess the impact of a recent state Supreme Court ruling on the same redistricting issue.

Republican legislative leaders and plaintiffs linked to the left-of-center activist group Common Cause urge the nation’s top court to keep the case and address its major constitutional issues. But two other sets of plaintiffs, N.C. Attorney General Josh Stein’s state Justice Department, and the U.S. solicitor general call on the court to dismiss the case as moot.

The N.C. high court’s April 28 decision in Harper v. Hall threw out an earlier state court ruling related to election maps. With a 5-2 party-line vote, the Republican-led court determined that the N.C. Constitution did not ban partisan gerrymandering. Justices decided that state courts would no longer deal with complaints that lawmakers used “excessive” partisanship when drawing election map lines.

That decision reversed a ruling handed down in February 2022, when Democrats held a 4-3 majority on the state Supreme Court. The earlier decision prompted Republican state legislative leaders to petition the U.S. Supreme Court for a review of the case. That appeal to the nation’s highest court took the title Moore v. Harper.

The Supreme Court heard oral arguments in the case in December. Court observers had expected a decision in the case by the time the court ends its term near the end of June.

National observers expected the court to address an issue called the Independent State Legislature theory. Critics who named the theory had argued that N.C. legislators wanted a ruling that would free state legislatures completely from state courts’ review of election maps and other election rules.

Questions about the case’s fate cropped up in February. That’s when the new state Supreme Court announced plans to rehear the related Harper v. Hall case.  The U.S. Supreme Court sought guidance in March from Moore v. Harper attorneys about the case’s future.

Once the state Supreme Court reversed its partisan gerrymandering decision in late April, the U.S. Supreme Court called on the parties again to offer arguments for keeping or dropping the case.

Lawyers representing N.C. House Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, called on the high court to move forward with a decision in Moore v. Harper.

“The North Carolina Supreme Court’s April 28 rehearing decision has no effect on this
Court’s jurisdiction,” legislative lawyers wrote. “This appeal continues to present two final judgments for the U.S. Supreme Court’s review, … and the issues presented are not moot.”

“While the North Carolina legislature is free to enact a new congressional map to govern the 2024 election cycle and subsequent elections, if this Court reverses Harper I then the original congressional map adopted by the North Carolina legislature before the outset of this controversy will be restored as the default map governing congressional elections in North Carolina,” lawmakers’ brief continued. “This case is not moot, and this Court is fully possessed of jurisdiction to decide it.”

Common Cause also wants to see a ruling in Moore v. Harper. “The Question Presented in this case is ‘important’ and it is ‘almost certain to keep arising until the Court definitively resolves it,’” according to the group’s brief. “Petitioners’ independent state legislature theory calls into question hundreds of state constitutional provisions and as many (or more) election laws. The dispute over that theory must be resolved in time to prepare maps, ballots, and election rules well in advance of the 2024 elections. It is therefore exceptionally important that the Court address the Question Presented as quickly as possible.”

Lawyers representing a group called the “Harper plaintiffs” or “Harper respondents” disagreed.

“The Harper Respondents have consistently maintained that this [Supreme] Court lacks jurisdiction,” according to that group’s brief. “The North Carolina Supreme Court’s April 28, 2023, decision only confirms as much. Because the state court has now overruled Harper I, vacated Harper II, and reinstated the trial court’s original judgment in Petitioners’ favor, there is no longer any judgment against Petitioners — ‘final’ or otherwise — for this Court to review.”

“Additionally, because the case or controversy has been resolved in Petitioners’ favor,
Petitioners no longer have standing and the case is moot,” Harper plaintiffs argued.

A third set of plaintiffs associated with the N.C. League of Conservation Voters mirrored the Harper plaintiffs’ arguments. The April 28 decision from Raleigh “divested” the U.S. Supreme court of jurisdiction in Moore v. Harper and “rendered this case moot,” according to a brief.

Lawyers in Democratic N.C. Attorney General Josh Stein’s Justice Department also called on the high court to drop the case. “This most recent Harper decision confirms that this Court lacks jurisdiction and should dismiss this case,” according to the Justice Department brief.

U.S. Solicitor General Elizabeth Prelogar argues for the federal government at the Supreme Court. At the court’s request, Prelogar responded to the April 28 ruling from Raleigh. “In that order, the North Carolina Supreme Court held that the North Carolina Constitution imposes no judicially enforceable limits on partisan gerrymandering, overruled the court’s contrary decision in Harper I, and dismissed the underlying suit with prejudice,” Prelogar wrote. “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.”

The U.S. Supreme Court is likely to decide in the coming days whether to keep the Moore v. Harper case. If justices decide to drop the case, they could decide that it will be “dismissed as improvidently granted.” That decision is sometimes referred to as “DIG.”