WASHINGTON, D.C. — On Monday, March 20, the parties in Moore v. Harper submitted additional briefing — at the request of the U.S. Supreme Court — in the pending case that could decide the fate of the radical independent state legislature (ISL) theory. This fringe theory asserts that under the Elections Clause of the U.S. Constitution, only state legislatures can enact rules regulating federal elections, including congressional maps, without being subject to state-level judicial review. Today’s additional briefing comes after the Supreme Court issued an order earlier this month asking the parties in Moore, along with the U.S. solicitor general (who participated in oral argument), to address the following question: Does the Court still have the legal authority (“jurisdiction”) to decide the case?” The Court’s order specifically asked the parties to weigh in on how and whether the North Carolina Supreme Court’s rehearing of Harper v. Hall — the state-level redistricting case underlying Moore — affects the U.S. Supreme Court’s jurisdiction to decide the merits of the ISL theory in Moore. Notably, the Court’s order also posed the question of how federal law and prior Supreme Court precedent, under which the Court can only review final decisions from state courts, affects its jurisdiction in Moore.
The following groups submitted additional briefing today:
- Republican legislators: The North Carolina Republican legislators support the constitutionality of the ISL theory before the U.S. Supreme Court and requested that the North Carolina Supreme Court rehear Harper and overturn its previous decisions on partisan gerrymandering in the state-level case.
- Pro-voting parties: The pro-voting parties include individual voters led by Rebecca Harper, the North Carolina League of Conservation Voters (NCLCV) and Common Cause. Each of these parties submitted separate briefs today, in which they assert differing arguments regarding the Court’s jurisdiction. Despite these differing points of view, these pro-voting parties together oppose the fringe ISL theory before the U.S. Supreme Court and argued that the North Carolina Supreme Court should affirm its prior decisions in the rehearing of Harper.
- State respondents: The state of North Carolina and the North Carolina Board of Elections were initially named as defendants in the state-level redistricting lawsuit, Harper, but also argue against any adoption of the ISL theory. The state respondents did not participate in the North Carolina Supreme Court’s rehearing of the state-level case.
- The United States: The United States, represented by the U.S. solicitor general, participated in oral argument before the U.S. Supreme Court and, in line with the pro-voting parties, opposes the adoption of the ISL theory.
Here’s what each party argued in today’s briefs:
The Republican legislators argue that the Supreme Court does have jurisdiction and should accordingly rule on the merits of the ISL theory in Moore. They also assert that the North Carolina Supreme Court’s decision to rehear the state-level case “has no effect on this Court’s continued jurisdiction.” The Republican legislators contend that the U.S. Supreme Court is “properly” reviewing a set of final decisions from a state Supreme Court — in this case, the North Carolina Supreme Court’s decision in Harper I wherein the court held that “it could invalidate Petitioners’ original [congressional] map and…that the North Carolina courts could draw their own map as a replacement…despite the federal Elections Clause.” Lastly, the Republican legislators proclaim that “regardless of what the North Carolina Supreme Court” decides on rehearing, “it will remain the case that the North Carolina Supreme Court in Harper I invalidated the General Assembly’s duly drawn congressional map under an improper understanding of the Elections Clause and in its subsequent stay denial allowed the 2022 congressional election in North Carolina to be conducted under a court-drawn map adopted in violation of the Elections Clause.”
On the other side, the pro-voting parties filed separate briefs to the Court, in which each party asserted different arguments.
- The Harper parties argue that the U.S. Supreme Court has always lacked jurisdiction over Moore under federal law and prior legal precedent “because the [state-level] case under review” — involving the North Carolina Supreme Court’s February 2022 decision initially striking down the state’s congressional and legislative maps — “was not final.” Instead, they maintain that the North Carolina Supreme Court’s decision on appeal in Moore was “intermediate” (as opposed to final) since it ultimately resulted in legal proceedings being remanded (meaning sent back) to the trial court to oversee the redrawing of the maps by the Legislature or, if necessary, by the court. The Harper parties add that the North Carolina Supreme Court’s decision to rehear the underlying state-level case “and subsequent proceedings to date do not change this conclusion.” Finally, the Harper parties contend that if the U.S. Supreme Court decides to issue a decision in Moore, it should “reject fully the independent state legislature theory.”
- Similarly, NCLCV argues that the Supreme Court never had jurisdiction to decide Moore “because there were ongoing state-court proceedings regarding the proper remedy for the state constitutional violations and therefore there was no ‘[f]inal judgment”’ from the North Carolina Supreme Court at the time when the U.S. Supreme Court agreed to accept the petition for a writ of certiorari in Moore. In turn, NCLCV states that its jurisdictional arguments still hold true and that it cannot speak to how the North Carolina Supreme Court’s rehearing will affect the U.S. Supreme Court’s jurisdiction because it “do[es] not yet know what the nature of [any subsequent state court] proceedings might be, nor when a final judgment may issue” from the state Supreme Court.
- In contrast to the other pro-voting parties, Common Cause argues that the U.S. Supreme Court does have jurisdiction to decide Moore and that the North Carolina Supreme Court’s rehearing proceedings “have no effect on the Court’s jurisdiction.” Common Cause also asserts that “[s]peculation about what the North Carolina Supreme Court may do at some future point does not affect this Court’s jurisdiction now, and it would be imprudent for this Court’s future cases to open the door to such possibilities here.” Ultimately, Common Cause concludes that the Court should decide on the issue of the ISL theory now, “regardless of the North Carolina Supreme Court’s decision on rehearing,” and should therefore not dismiss Moore.
The state respondents argue that the U.S. Supreme Court does not have jurisdiction to decide Moore because the “decisions on review are nonfinal” and that it should therefore dismiss the case. In regards to the North Carolina Supreme Court’s rehearing, the state respondents maintain that its “decision to grant rehearing confirms that the decisions on review are nonfinal and that this Court therefore lacks jurisdiction.”
Finally, the United States argues that the U.S. Supreme likely no longer has jurisdiction in light of “the particular circumstances presented here,” but simultaneously acknowledges that “that the issue [in this case] is a novel one, and that this Court might reasonably reach a different conclusion…[since] it is anomalous for a state court’s action to divest this Court of jurisdiction after the Court has already granted certiorari.” In particular, the United States asserts that the developments related to the North Carolina Supreme Court’s rehearing of the state-level case “make it difficult to conclude that Harper I remains a ‘[f]inal judgment”’ that is within the U.S. Supreme Court’s jurisdiction. Finally, the United States asserts that if the Supreme Court “were to issue a decision on rehearing reversing Harper I before this Court issues its opinion in this case, it appears likely that the state court’s decision would effectively moot the federal issue.” In other words, the United States is arguing that if the North Carolina Supreme Court held that partisan gerrymandering claims are not reviewable by the state judicial branch, such a decision “would effectively moot the federal Elections Clause issue in this case” and “[t]here would be no need to decide whether the Elections Clause prevents state courts from enforcing particular types of state-law requirements in a case where the state courts have found that no such state-law requirements exist.”