WASHINGTON, D.C. — On Thursday, March 2, the U.S. Supreme Court requested additional briefing in Moore v. Harper, the landmark case that could decide the fate of the radical independent state legislature (ISL) theory. Under the ISL theory, the North Carolina Republicans petitioners in Moore suggest that the Elections Clause of the U.S. Constitution gives state legislatures exclusive authority to set federal election rules, including drawing congressional maps, free from interference from other parts of the state government such as state courts and governors. However, back in early February, the trajectory of Moore became more convoluted and uncertain after the North Carolina Supreme Court granted a request from North Carolina Republican lawmakers to rehear Harper v. Hall, the redistricting case in state court from which Moore originates. Specifically, in Harper, the North Carolina Supreme Court struck down the state’s Legislature-drawn congressional and legislative maps drawn with 2020 census data for being partisan gerrymanders that violated the state constitution; later on, the court also upheld the court-drawn remedial congressional map, but struck down the legislatively drawn remedial state Senate map for again being a partisan gerrymander. The North Carolina Supreme Court is set to rehear these decisions on March 14.
In light of these new developments pertaining to rehearing in the North Carolina Supreme Court, today’s order issued by the U.S. Supreme Court asks the parties in Moore, along with the U.S. solicitor general (who participated in oral argument), to submit briefing regarding the issue of rehearing. In particular, the Court’s order asks the parties to address whether the North Carolina Supreme Court’s decision to rehear Harper — and any subsequent state court rulings following rehearing — might affect the U.S. Supreme Court’s jurisdiction in Moore. The Court asks the parties to submit briefing by March 20.
As of now, the possible impacts of rehearing on the Supreme Court’s pending decision in Moore remain uncertain. However, today’s order indicates 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 in Moore. Notably, under Supreme Court precedent and federal law, the Court can only review final decisions from state Supreme Courts; as a result, there is a chance that the high court could dismiss Moore altogether given that the prior decisions in Harper are being reconsidered and could be overturned. In legal terms, the Court could dismiss the petition for writ of certiorari in Moore as “improvidently granted.” This means that despite previously agreeing to hear the case, the Court could revoke certiorari and decide that it will not issue a final decision in Moore since the case is no longer the proper vehicle for deciding the merits of the ISL theory. Alternatively, the Supreme Court could still issue a ruling in Moore and decide on the constitutionality of the ISL theory regardless of what the North Carolina Supreme Court does after rehearing on March 14.