WASHINGTON, D.C. — On Friday, March 3, pro-voting parties submitted their brief in a previously decided redistricting case, Harper v. Hall, that the North Carolina Supreme Court’s new Republican majority agreed to rehear. The case — a precursor to the currently pending U.S. Supreme Court case, Moore v. Harper, that raises the radical independent state legislature (ISL) theory — struck down North Carolina’s original congressional and legislative maps drawn with 2020 census data for being partisan gerrymanders and, following that, rejected the remedial state Senate map adopted by the Legislature. In a highly unprecedented move back in early February, a majority of the North Carolina Supreme Court — which shifted from a Democratic to Republican majority in the 2022 midterm elections — agreed to rehear this case, along with another case that struck down a photo ID law, following requests for rehearing from the GOP legislators who previously lost both cases.
Friday’s brief in the North Carolina Supreme Court comes on the heels of an order issued on March 2 by the U.S. Supreme Court asking the parties in Moore v. Harper to submit additional briefing pertaining to the issue of rehearing; in particular, the Supreme Court’s order asks the parties to answer whether the Court still has jurisdiction over the ISL theory case in light of the rehearing proceedings taking place in the state Supreme Court.
On Feb. 17, the North Carolina GOP legislators who asked the state Supreme Court to rehear Harper submitted their opening brief in which they argue that the court erred in its December 2022 decision striking down the remedial state Senate map used in the 2022 elections for being a partisan gerrymander and upholding the court-drawn remedial congressional map used in the 2022 elections. In addition to asking the court to reverse its December 2022 decision, the GOP legislators also urge the court to overturn its February 2022 decision striking down the state’s originally enacted legislative and congressional maps for being partisan gerrymanders. On March 3, pro-voting parties — individual voters (the Harper parties), the North Carolina League of Conservation Voters (NCLCV) and Common Cause — submitted their joint response in opposition to the North Carolina GOP legislators’ arguments.
In the brief submitted on Friday, the pro-voting parties refute the arguments made by the legislators, asserting that they have failed to provide the court with a valid basis for overruling its prior decisions regarding partisan gerrymandering. In addition to underscoring that “partisan-gerrymandering claims are justiciable,” the pro-voting parties point out that because the GOP legislators “raise arguments resting on essentially the ‘same line of argument’ and the ‘same authorities’ previously raised in, and rejected by, this Court, they must again be rejected.” Finally, the pro-voting parties push back against the GOP legislators’ request to redraw the state House, state Senate and congressional maps, noting that although the legislators are permitted to redraw the congressional and state Senate maps that were previously struck down, they are not permitted to redraw the state House map. The pro-voting parties contend that doing so would “inflict great damage on the fundamental principle of stare decisis,” the legal principle that courts should abide by precedent, and also “ignore the plain language of the North Carolina Constitution’s bar against mid-decade legislative redistricting.”
Oral argument on the rehearing is set for March 14 in Harper. As of now, the possible impacts of this rehearing on the pending U.S. Supreme Court case, Moore v. Harper, remain uncertain. However, given last week’s Supreme Court order, it is clear that the high court is, at the very least, considering how the rehearing proceedings in the North Carolina Supreme Court might affect whether and when the U.S. Supreme Court issues a decision on the merits of the ISL theory in Moore.