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Unfortunately, the Biggest Election Case of the Supreme Court Term Could Be Moot

Slate 2/6/2023 Richard L. Hasen
Voting rights activists rally outside the U.S. Supreme Court during oral arguments in the Moore v. Harper case December 7, 2022 in Washington, D.C. Drew Angerer/Getty Images © Provided by Slate Voting rights activists rally outside the U.S. Supreme Court during oral arguments in the Moore v. Harper case December 7, 2022 in Washington, D.C. Drew Angerer/Getty Images

Will a power grab by the new Republican majority on North Carolina’s Supreme Court—ostensibly to reverse a power grab by the earlier Democratic majority on North Carolina’s Supreme Court—deprive conservatives on the United States Supreme Court of a power grab over U.S. elections? Or will it just delay an urgent election ruling to a much worse time—when it could decide the outcome of a major election?

The Supreme Court’s potential blockbuster election decision in Moore v. Harper, now expected by late June, could soon be rendered moot by an order that the North Carolina Supreme Court issued on Friday to rehear the underlying case. If Republican state justices in North Carolina moot Moore, it might simply delay an outcome on an issue that should be resolved sooner rather than later.

This convoluted story begins in the last decade, after the U.S. Supreme Court smacked down North Carolina’s general assembly for drawing its congressional district lines as a racial gerrymander. Legislators went back to the drawing board, knowing full well that they got in trouble for making race the predominant factor in drawing district lines.

North Carolina legislative leaders proudly announced that their new districting plan would not consider race, but would instead be a partisan gerrymander: drawing lines for maximum political advantage. In a state that was about evenly divided between the two major parties, Republicans drew a 10-3 Republican map for the state’s congressional districts.

The good government group Common Cause and others sued over the new map, claiming it was a blatant partisan gerrymander that violated the Equal Protection Clause of the U.S. Constitution. In 2019’s Rucho v. Common Cause case, the Supreme Court in a 5-4 decision held that federal courts lacked judicially manageable standards to decide when taking partisanship into account might go so far. Chief Justice John Roberts, for the majority, said there were other ways to deal with the problem, like state courts applying state constitutional standards, Congress passing a statute governing congressional redistricting, or voter initiatives.

Undaunted, Common Cause went to the North Carolina state courts, arguing that partisan gerrymandering violates a part of the state constitution guaranteeing free and equal elections. The group was successful, with a lower court striking down the gerrymandered maps of the previous decade and forcing the 2020 election be run with new maps. It then secured a ruling from the North Carolina Supreme Court that the new congressional districts drawn for this decade violated the state constitution as well.

The politics of the state ruling was not lost on anyone who follows North Carolina politics. The North Carolina state constitution gives only its general assembly the right to draw congressional districts; the state’s Democratic governor, Roy Cooper, has no say. The state Supreme Court had a Democratic majority when it ruled that the redistricting violated the state Constitution, and Republicans attacked the ruling as a power grab. It’s worth noting that those same Republicans didn’t complain when similar state court rulings led to opposite outcomes, like when New York’s courts struck down its Democratic gerrymander of congressional districts as a partisan gerrymander under the New York Constitution, leading to a much more favorable map for Republicans in that state.

Republican legislators in North Carolina who attacked the state Supreme Court ruling took that ruling to the U.S. Supreme Court, arguing that the state Supreme Court had violated the U.S. Constitution. Under the legislators’ radical “independent state legislature” theory, only state legislatures, and not state courts, would have any power to regulate Congressional elections. Never mind that the U.S. Supreme Court in Rucho expressly pointed to state supreme courts applying state constitutions as a proper means of policing gerrymandering.

This ISL theory is a dangerous one, as many of us have long said. It would push power to state legislatures to engage in even more egregious gerrymandering, unchecked by state constitutions. It would, as Nat Bach and I argued in an amicus brief and at Slate, lead to a flood of election litigation in federal courts, giving unhappy litigants a second bite at the apple, undermining the legitimacy of both the political process and the courts. And it would leave the Supreme Court in the driver’s seat, ultimately in a position to second-guess any state supreme court interpretation of a state constitution that it believes goes too far.

Now, after a ton of briefing and a lengthy oral argument, the whole dispute could be moot. Republicans took control of the North Carolina Supreme Court after November’s elections, and as soon as that happened I immediately wondered if the state’s Republican legislators would try to get the partisan gerrymandering issue back before the state Supreme Court in a new case.

But the legislators did one better. Rather than filing a new case for the next round of elections, they filed a petition for rehearing in the state Supreme Court in the original case while the U.S. Supreme Court case is pending, arguing explicitly that the new justices should overturn the partisan gerrymandering standard under the state Constitution.

This past Friday, on a 5-2 party line vote, the North Carolina Supreme Court agreed to hear the case and rejected Common Cause’s petition to dismiss the rehearing request. Justice Anita Earls, an elected Democrat and former election law litigator, dissented: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” She called the decision “an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’”

The decision to seek rehearing is a curious one, and indicates some doubts on the part of Republicans that the U.S. Supreme Court’s decision in Moore would be a favorable one. After all, if you think there is a chance of getting a good ruling from the U.S. Supreme Court, why moot your case? And if you lose in the Supreme Court, you could always go back to the state supreme court in a new case to get the state court to reverse course.

Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.

Common Cause too may have reasons to argue for the case’s mootness. After all, a bad decision in North Carolina rejecting a partisan gerrymandering claim under the state constitution would only affect that state. In contrast, an embrace of the independent state legislature doctrine by the U.S. Supreme Court would have negative effects around the country.

But there is a cost here of throwing out the Moore case at this stage, and it is not just all of the lost effort on the part of lawyers, justices, and clerks. The ISL theory is not going away. It has come up in numerous cases over the last few years, and it is going to keep arising until the Supreme Court resolves it. Given the weaknesses of the legislators’ arguments in Moore, it seems like a pretty good case in which to get some clarity.

Moreover, it is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election. It is far worse when the Supreme Court’s involvement in election cases is outcome determinative, casting new doubts on the legitimacy on the courts and the electoral process. In this case, there is no individual outcome being threatened, but rather a group of future maps. And better to have rules set and understood in advance, then figured out after the fact.

People may give a cheer if this new power grab by the state supreme court deprives the U.S. Supreme Court of its own possible power grab in Moore v. Harper. But postponing the inevitable will not necessarily lead to better results down the line.

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