UPDATE: The state parties — who are on the same side as the Harper parties — have submitted their brief to the U.S. Supreme Court. The state of North Carolina and the Board of Elections focus their argument on state laws that authorize judicial review of congressional maps passed by the General Assembly.
The state parties argue the Court doesn’t need to consider the Moore parties’ sweeping Elections Clause claims because the General Assembly “prescribed a detailed statutory scheme authorizing judicial review of congressional redistricting to ensure that it complies with state-constitutional requirements.” Since “[e]verything the state courts did here fell within that explicit grant of statutory authority,” nothing about the process violates the U.S. Constitution. The state parties go on to argue that the Moore parties’ attempt to get around these state laws fail on numerous grounds. Finally, the state parties point out that the Moore parties’ contentions about the remedial congressional map are irrelevant, as the North Carolina Supreme Court has yet to issue a final decision about the remedial map and, as a result, the U.S. Supreme Court “lacks jurisdiction.”
The state parties also largely echo the Harper parties’ arguments about the Moore parties’ interpretation of the Elections Clause, stating that “[t]ext, history, and precedent all show that state legislatures must comply with their constitutions when they carry out the responsibilities assigned to them by the Elections Clause.”
WASHINGTON, D.C. — On Wednesday, Oct. 19, the Harper parties in the U.S. Supreme Court case Moore v. Harper submitted their brief summarizing their position ahead of oral argument on Dec. 7. The case, which deals with congressional redistricting in North Carolina, gives the Court the opportunity to review the fringe independent state legislature (ISL) theory, which 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 congressional 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 will be in place for the 2022 elections only. The Republican legislators (the Moore parties) 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.
In their brief submitted on Aug. 29, the Moore parties invoke the ISL theory to argue that the North Carolina Supreme Court improperly imposed state-constitutional limits on the Legislature’s authority over congressional redistricting. They argue that the U.S. Constitution’s Elections Clause “assigns to state legislatures alone the authority to regulate the times, places, and manner of congressional elections” and, accordingly, state courts cannot determine if the rules a legislature sets for federal elections comply with the state constitution. The Moore parties contend that the Framers of the U.S. Constitution deliberately chose not to give state courts any role in federal elections, a contention they insist is supported by the historical record and in line with the U.S. Supreme Court’s past precedent. Finally, they allege that the North Carolina Supreme Court’s actions represent an unconstitutional usurpation of legislative power that is not authorized by state law. They contend that the U.S. Constitution “place[s] the regulation of federal elections in the hands of state legislatures, Congress, and no one else.”
The Harper parties’ brief rebuts all of the Moore parties’ arguments. Contrary to the Moore parties’ contention, the Harper parties argue that a state legislature is always “constrained by the [state] constitution that created it” and the Framers drafted the Elections Clause “understanding that state courts would undertake…review to ensure conformance with state constitutions.” The Moore parties’ interpretation of the U.S. Constitution is at odds with the structure of the Constitution and antithetical to the principles of the Framers, according to the Harper parties. To endorse the Moore parties’ argument would allegedly be “a radical departure from the most fundamental principles of the very constitution the Framers had convened to write.”
The Harper parties also reject the Moore parties’ historical argument. The Harper parties point out that a key document on which the Moore parties base their historical claims “is almost certainly a fake” and note that, in reality, a supermajority of early state constitutions regulated congressional elections. Additionally, nearly a century of U.S. Supreme Court precedent rejects the Moore parties’ argument, according to the Harper parties, with the justices unanimously agreeing as recently as 2019 that “state courts could apply substantive provisions in state constitutions to congressional redistricting.”
Finally, the Harper parties note that even if the Moore parties’ interpretation was correct, the Moore parties would still not prevail because the North Carolina General Assembly specifically authorized judicial review of congressional redistricting plans. Additionally, Congress has exercised its own Elections Clause powers to mandate that congressional plans comply with state constitutions. The Harper parties end their argument by noting that the Moore parties’ contentions would upend federalism by “install[ing] federal courts as overseers, second-guessing state courts’ interpretations of their own state constitutions” and “would upend election administration nationwide.” They conclude that “[i]t is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy.”
A brief from North Carolina and the North Carolina State Board of Elections — who are on the same side as the Harper parties — is expected later today. The Moore parties’ reply brief is due Nov. 18 and oral argument will be held Dec. 7.