WASHINGTON, D.C. — On Friday, Nov. 18, the Moore parties in the upcoming U.S. Supreme Court case Moore v. Harper submitted their brief replying to the arguments of the Harper parties ahead of oral argument on Dec. 7. The case, which originated as a congressional redistricting lawsuit in North Carolina, gives the Court the opportunity to review the fringe independent state legislature (ISL) theory. This theory argues that state legislatures have special authority to set federal election rules, free from interference from other parts of the state government such as state courts and governors.
After the Republican-controlled North Carolina General Assembly passed a heavily gerrymandered congressional map, the Harper parties challenged the map in state court. Earlier this year, the North Carolina Supreme Court ruled in favor of the Harper parties and struck down the map for being a partisan gerrymander in violation of the state constitution. Following this decision, the trial court adopted an interim remedial congressional map — drawn by court-appointed special masters — that was in place for the 2022 elections only. The Republican legislators (the Moore parties) then petitioned the U.S. Supreme Court to review both the North Carolina Supreme Court’s Feb. 14 decision to strike down the congressional map and the trial court’s adoption of an interim remedial map. On June 30, the U.S. Supreme Court granted the request to hear the case.
The Moore parties submitted their opening brief on Aug. 29 and the Harper parties submitted briefs summarizing their positions on Oct. 19. In their reply brief filed today, the Moore parties invoke the ISL theory by asserting that the North Carolina Constitution cannot constrain the state Legislature in congressional redistricting. Since the authority to regulate federal elections is “commissioned by the federal Constitution,” only the federal Constitution can act as a constraint, they argue. While acknowledging that judicial review applies to redistricting, the Moore parties argue courts are only permitted to review congressional redistricting under the U.S. Constitution and not state constitutions. According to the Moore parties, the Harper parties’ contention that the Elections Clause merely grants “primacy” to the state legislature is “self-refuting” and has “no basis in the Constitution’s text.”
The Moore parties go on to dispute the wealth of historical evidence offered by the Harper parties. In response to evidence that a key historical document the Moore parties relied on is fake, they merely state the “dispute over [its] authenticity” is “inconsequential.” In the face of a long list of early state constitutional provisions that regulate elections offered by the Harper parties, the Moore parties argue the cited “provisions…do not meaningfully support” the Harper position — in part because provisions that apply to “all” elections only mean all state elections and not federal ones (the Harper parties maintained in their briefs that “‘all’ means all” state and federal elections). The Moore parties also reject significant swathes of historical evidence because it comes from “the second half of the nineteenth century” and is therefore “less probative.”
The Moore parties then reject the Harper parties’ argument that the Supreme Court’s precedent does not support the ISL theory. But to do so, the Moore parties walk back the earlier assertion in the brief that state constitutions cannot constrain state legislatures and concede that “state legislatures are subject to various state-constitutional procedural requirements” in order to square their position with the Court’s precedents. They try to draw a distinction between procedural and substantive constraints and argue that the North Carolina Supreme Court’s decision applied substantive constraints and is therefore invalid.
The Moore parties also reject the Harper parties’ contention that the ISL theory would prevent voters from responding to partisan gerrymandering. They contend that “States would retain a variety of means for dealing with partisan gerrymanders, including the gubernatorial veto, popular referenda [and] independent redistricting commissions” — without acknowledging that North Carolina’s governor doesn’t have a veto over redistricting plans or that referendums or a redistricting commission would require the North Carolina Legislature’s involvement. The remedies the Moore parties cite are either unavailable to North Carolinians or would require the participation of the very body that drew the gerrymander in the first place.
Finally, in response to the Harper parties’ argument that the North Carolina Legislature specifically authorized judicial review of congressional redistricting plans, the Moore parties argue that the law in question merely allows state courts to review congressional maps for compliance with the federal constitution, not with the state constitution. The statute allegedly “leaves in place the background rules governing which rules of decision apply.” The Moore parties also argue against a point raised by both the Harper parties and the United States in its amicus brief that federal law requires legislatures to comply with their state constitutions when undergoing redistricting.
The Court will hear oral argument in Moore v. Harper on Dec. 7.