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Federal government’s top Supreme Court lawyer will take part in N.C. redistricting hearing

U.S. Solicitor General Elizabeth Prelogar. Photo from justice.gov

U.S. Solicitor General Elizabeth Prelogar will share the federal government’s views next month during U.S. Supreme Court oral arguments in a high-profile N.C. redistricting case. It will mark the second time in little more than a month that Prelogar argues in a case with Tar Heel ties.

The nation’s highest court issued an order Wednesday granting Prelogar’s request to take part in the Dec. 7 arguments for Moore v. Harper. The court also agreed to expand the standard 60-minute argument session by 30 minutes. Moore v. Harper is the only case on the Supreme Court’s argument calendar that day.

State legislative leaders will get 45 minutes to make their case against the N.C. Supreme Court’s redistricting actions this year. Lawmakers argue that state courts overstepped their authority by rejecting lawmakers’ proposed congressional district map. The state Supreme Court endorsed a court-imposed map for the 2022 congressional election cycle.

On the other side of the case, plaintiffs, lawyers representing state government’s executive branch, and Prelogar will split 45 minutes of argument time. Each will get 15 minutes to rebut legislative leaders’ position in Moore v. Harper.

Prelogar argued Oct. 31 in another U.S. Supreme Court case linked to North Carolina. The solicitor general argued in favor of the University of North Carolina at Chapel Hill’s use of race in admissions decisions.

In Moore v. Harper, Prelogar challenges N.C. legislative leaders’ claims about the U.S. Constitution’s Elections Clause. Lawmakers contend that the clause guarantees that state legislatures have the sole authority to set rules for the “time, place, and manner” of elections to the U.S. House and Senate.

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“Text, practice from the Founding to today, and a century of this Court’s precedent confirm that the Clause takes state legislatures as it finds them — subject to state constitutional constraints and state judicial review,” according to a brief Prelogar filed on Oct. 26. “And even if that were not so, nothing in the Clause would prohibit a state legislature from choosing to be bound by those constraints, as the North Carolina General Assembly has done here.”

“The Elections Clause makes clear that when state legislatures prescribe the time, place, and manner of federal elections, they engage in ordinary lawmaking,” Prelogar wrote. “Nothing in the Clause’s text suggests that the Framers intended to unmoor that lawmaking process from state constitutional checks and balances.”

Legislative leaders submitted their own arguments to the U.S. Supreme Court in August.

“The text of the Constitution directly answers the question presented in this case,” lawmakers’ lawyers wrote. “The Elections Clause provides, in unambiguous language, that the manner of federal elections shall ‘be prescribed in each State by the Legislature thereof.’ Yet in the decision below, the North Carolina Supreme Court invalidated the state legislature’s duly enacted congressional map and decreed that the 2022 election and all upcoming congressional elections in the State were not to be held in the ‘Manner’ ‘prescribed … by the Legislature thereof,’ but rather in the manner prescribed by the state’s judicial branch.”

“It is obvious on the face of the Constitution that this result is irreconcilable with that document’s allocation of authority over federal elections,” legislative leaders argued. “As this Court recently explained, ‘[t]he Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.’ Their approach did not assign any role in this policymaking process to state judges, and the decisions by the courts below cannot stand.”

Court observers expect decisions in Moore v. Harper and the UNC-CH admissions case near the end of the U.S. Supreme Court’s term next June.

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