Attorneys general from 13 states are formally supporting North Carolina’s U.S. Supreme Court arguments in Moore v. Harper. That case could decide what role state courts can play in rejecting congressional election maps drawn by legislatures.
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 Tuesday.
“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.’”
“Text and the rule of law matter,” the attorney generals argued. “This Court should clearly hold that none of the state constitutional provisions relied on by the Supreme Court of North Carolina empowers it to legislate the manner of congressional elections, and it should reverse the North Carolina Supreme Court’s opinion imposing a court-drawn map in place of a legislatively-enacted one.”
The state Supreme Court endorsed a trial court’s decision in February to throw out the N.C. General Assembly’s congressional election 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 N.C. 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 the courts overstepped their authority in rejecting state lawmakers’ work. They argue in Moore v. Harper that the Election Clause in 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.
Legal observers, especially critics of N.C. lawmakers’ case, have labeled the argument the independent state legislature doctrine.
The attorneys general’s brief was one of 17 filed Tuesday in Moore v. Harper. Fourteen briefs supported N.C. legislators. Twelve 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 on Friday.
The U.S. Supreme Court is expected to hear oral arguments in Moore v. Harper later this year. Court observers expect a decision near the end of the court’s next term in June 2023.