US Supreme Court seeks input by May 11 on Moore v Harper’s future

Supreme Court of the United States

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  • The U.S. Supreme Court wants new briefs by May 11 in the high-profile Moore v. Harper redistricting case. The briefs will help the court decide whether to keep or dismiss the case.
  • The order for new briefs arrived one day after a letter alerted the court to a related N.C. Supreme Court decision in a case titled Harper v. Hall.
  • Legal observers say the N.C. Supreme Court's decision to repudiate its earlier opinion on partisan gerrymandering cases likely renders Moore v. Harper moot.

The U.S. Supreme Court has asked parties in the high-profile Moore v. Harper redistricting case to submit new briefs by May 11. Those briefs will help the court decide whether to keep or dismiss the case.

The request for new briefs arrived late Thursday, one day after a letter from the parties alerted the high court to an April 28 decision from the N.C. Supreme Court. Lawyers on both sides of the case indicated they would be “pleased” to submit additional briefs if necessary.

“The parties and the Solicitor General are invited to file supplemental letter briefs addressing the following question: What is the effect on this Court’s jurisdiction of the April 28, 2023, order of the North Carolina Supreme Court?” the U.S. Supreme Court indicated in its new two-sentence order.

The April 28 decision in a related case, Harper v. Hall, throws the future of Moore v. Harper into question. Moore v. Harper represented state legislative leaders’ appeal of a February 2022 opinion from the N.C. Supreme Court in Harper v. Hall.

That decision declared that “excessive” partisan gerrymandering violated the N.C. Constitution. The state Supreme Court, then with a 4-3 Democratic majority, threw out Republican-drawn statewide election maps, including the map for North Carolina’s 14 seats in the U.S.. House of Representatives. The state’s high court allowed a trial court panel to substitute its own map, drawn by outside special masters, for the 2022 elections.

Legislators’ appeal to the nation’s highest court argued that state courts exceeded their authority in tossing out the General Assembly’s preferred congressional map. The U.S. Supreme Court agreed to take the case. Justices heard oral arguments in December 2022. Observers had expected a decision by the end of the Supreme Court’s current term around the end of June.

Nine days after those arguments, the N.C. Supreme Court released a second Harper v. Hall opinion. It confirmed the 4-3 Democratic court’s concerns about partisan gerrymandering. In addition to confirming the decision to reject legislators’ congressional map, the state high court ordered lawmakers to redraw their map for state Senate elections.

That Dec. 16 decision became official on Jan. 5. By that time, two new Republican justices had replaced Democrats on the N.C. Supreme Court. With a new 5-2 Republican majority, the court granted legislative leaders’ request to rehear the case in March.

The April 28 decision repudiated the two earlier Harper v. Hall rulings.

“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering,” wrote Chief Justice Paul Newby. “It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”

“Furthermore, were this Court to create such a limitation, there is no judicially discoverable or manageable standard for adjudicating such claims,” Newby added. “The constitution does not require or permit a standard known only to four justices. Finally, creating partisan redistricting standards is rife with policy decisions. Policy decisions belong to the legislative branch, not the judiciary.”

Newby pointed to the U.S. Supreme Court’s 2019 decision in Rucho v. Common Cause. In that case, the nation’s highest court decided that federal courts would no longer consider partisan gerrymandering cases.

“Recently, the Supreme Court of the United States reviewed similar claims under the Federal Constitution and determined that ‘excessive’ partisan gerrymandering claims involve nonjusticiable, political questions,” Newby wrote. “We find the Supreme Court’s analysis in Rucho insightful and persuasive. For all these reasons, we hold that partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.”

Legal observers have suggested that the N.C. Supreme Court’s latest decision renders Moore v. Harper moot. The case asked the U.S. Supreme Court to reverse a decision that the N.C. Supreme Court has now reversed on its own.

Thursday’s order marks the second time in two months that the U.S. Supreme Court has asked for additional briefs in Moore v. Harper. On March 2, the high court asked for additional briefs after the N.C. Supreme Court announced its plans to rehear Harper V. Hall.

When the parties in the case and U.S. Solicitor General Elizabeth Prelogar submitted briefs on March 20, they offered contrasting ideas about the future of Moore v. Harper. Lawyers from Democratic N.C. Attorney General Josh Stein’s state Justice Department urged the high court to dismiss the case. Lawyers for Republican legislative leaders asked the court to keep the case.

Three sets of plaintiffs split on whether the case should continue. Prelogar offered arguments for dealing with similar cases in the future, adding “we do not believe that those arguments warrant the continued exercise of jurisdiction under the circumstances presented here.”