The U.S. Supreme Court agreed without comment Thursday to take up a dispute involving N.C. election maps. Justices will consider the case Moore v. Harper after the court returns from a summer break.
Justices will decide “Whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,’ and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election,” according to the petition N.C. legislative leaders submitted to the nation’s highest court.
State legislative leaders had filed a petition March 17 asking the U.S. Supreme Court to take the case. That paperwork arrived 10 days after the court had voted, 6-3, to reject an emergency petition. An emergency petition could have blocked the current election map from being used for 2022 U.S. House contests.
On March 7, Justice Brett Kavanaugh indicated that he agreed with dissenting Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas that the court should address the issue of state courts’ role in addressing state legislatures’ decisions about redistricting.
It takes “yes” votes from four of the nine justices for the U.S. Supreme Court to agree to hear a case.
“The Constitution directs that the manner of federal elections shall ‘be prescribed in each State by the Legislature thereof,’” according to legislative leaders’ original petition. “’The Constitution provides that state legislatures’ — not ‘state judges’ — ‘bear primary responsibility for setting election rules,’ including the rules establishing the shape of congressional districts.”
State legislative leaders criticized the N.C. Supreme Court’s actions in the redistricting dispute. “Yet in the decision below, the North Carolina Supreme Court decreed that the 2022 election and all upcoming congressional elections in North Carolina 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.”
The state Supreme Court issued a Feb. 4 ruling tossing out state lawmakers’ map for congressional elections. “And after Petitioners — North Carolina legislators, including the Speaker of the House of Representatives and the President Pro Tempore of the Senate — engaged in a good-faith effort to craft a congressional map that would be valid under the state supreme court’s order, the state trial court rejected that map, too.”
“Instead, the trial court mandated the use of a new map in the 2022 election that had been created by a group of Special Masters and their team of assistants — who, to make matters worse, designed their own, judicially-crafted map after engaging in ex parte communications with experts for the plaintiffs. The North Carolina Supreme Court refused to stay this decision, thereby authorizing this judge-made map to govern the 2022 election cycle.”
“If a redistricting process more starkly contrary to the U.S. Constitution’s Elections Clause exists, it is hard to imagine it,” the legislative leaders’ brief concluded.
Opposing briefs filed May 20 by the legislature’s critics had asked the Supreme Court not to take the case.
“Petitioners now ask this Court to exercise its [discretionary] certiorari review to invalidate the map the trial court adopted for the 2022 elections on the ground that state courts are forbidden from protecting individuals’ state constitutional rights by reviewing state laws that touch on federal elections, including the enactment of congressional districts,” according to a brief from Common Cause. That left-of-center activist group has challenged election maps drawn by the Republican-led General Assembly for the past decade.
“The way they see it, because the Constitution refers to ‘the Legislature’ of a State setting the time, place, and manner of congressional elections, it precludes state courts from reviewing whether such election-related legislation complies with the State’s own constitution,” the Common Cause brief continued. “Instead, Petitioners would have this Court say that a state legislature has carte blanche in this context — unrestrained by state constitutional limitations and unable to incorporate state courts into the process, even if it passes a statute attempting to do so.”
“As a matter of text, structure, history, precedent, and long-established practice in this country, that is flatly wrong.”
No date has been set for oral arguments in the case. It could be among the first cases heard by the court’s newest member, Justice Ketanji Brown Jackson. She was sworn into office Thursday, replacing the retiring Justice Stephen Breyer.
This developing story will be updated.