The U.S. Supreme Court will hear oral arguments on Dec. 7 in Moore v. Harper, the N.C. redistricting case that has attracted national attention. The court announced the hearing date Tuesday.
Moore v. Harper could determine what role state courts can play in rejecting congressional election maps drawn by legislatures.
The N.C. Supreme Court endorsed a trial court’s decision in February to throw out the General Assembly’s congressional district map for this year’s election. State courts substituted their own map for the 2022 election cycle. Outside appointed “special masters” drew the map.
The state Supreme Court justified its decision on the basis of several state constitutional provisions, including Article I, Section 10. It says “All elections shall be free.”
State legislative leaders argue that state courts overstepped their authority in rejecting lawmakers’ work. They argue in Moore v. Harper that the Election Clause — Article I, Section 4, Clause 1 of the U.S. Constitution — assigns decisions about the “times, places, and manner” of holding federal elections to state legislatures.
“The text of the Constitution directly answers the question presented in this case,” wrote legislative leaders’ attorneys in August. “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.”
Legal observers, especially critics of N.C. lawmakers’ case, have labeled the argument the independent state legislature doctrine.
Attorneys general from 13 states formally support North Carolina’s arguments. The attorney generals from Alabama, Arizona, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas, and Utah filed an amicus, or friend-of-the-court, brief on Sept. 6.
“Amici States have strong interests in the correct branch of their state governments carrying out redistricting,” the brief opened. “Separation of powers is fundamental to the proper functioning of state government because it ensures political accountability and also protects liberty. Conversely, the states have no interest in one branch of their governments usurping the proper
function of another.”
“The threats to state interests are clear in this case,” the brief continued. “If state courts are allowed to override legislative decisions based on vague state constitutional provisions, then the delegation from the federal Elections Clause is transformed from its text and intent. This undermines the rule of law.”
The 13 attorneys general put forward “one primary argument” — “that the text of the Elections Clause matters and that its enforcement by federal courts poses no threat to state sovereignty in our federal system.”
“The Framers could have assigned the power over federal elections in the first instance to states, without specifying which entity of state government would have primary responsibility,” the brief continued. “But recognizing that prescribing the times, places, and manner of federal elections is fundamentally a legislative role, the Framers specified that this delegated power would be exercised by ‘the Legislature thereof.’”
The attorneys general’s brief was one of 17 filed on Sept. 6 in Moore v. Harper. Fourteen briefs supported N.C. legislators.
A dozen state legislators from Missouri, Pennsylvania, South Carolina, and Texas backed their Tar Heel counterparts. State legislative leaders also attracted friend-of-the-court support from the Lawyers Democracy Fund, Citizens United, Presidential Coalition, APA Watch, America First Legal Foundation, American Legislative Exchange Council, White House Watch, Honest Elections Project, Taxpayers for Honest Elections, National Republican Redistricting Trust, the Claremont Institute’s Center for Constitutional Jurisprudence, America’s Future Inc., Republican National Committee, NRCC, N.C. Republican Party, and Public Interest Legal Foundation.
Pennsylvania’s Republican state senators and the group Restoring Integrity and Trust in Elections filed friend-of-the-court briefs supporting N.C. lawmakers earlier in September.
Opponents of N.C. legislators’ arguments must file their written arguments by Wednesday. Observers expect multiple friend-of-the-court briefs from groups tied to the Democratic Party and left-of-center activist interests.
The U.S. Supreme Court is likely to issue its ruling in Moore v. Harper near the end of the current court term next June. That ruling could affect the redrawing of N.C. congressional maps for the 2024 elections.
