WASHINGTON, D.C. — The U.S. Supreme Court should reject the dangerous and fringe independent state legislature theory (ISLT) presented in Moore v. Harper regardless of the highly unusual decision by the North Carolina Supreme Court to rehear the remedial decision in Harper v. Hall, according to a new plaintiff’s letter responding to the high court.
“This Court retains jurisdiction over this case regardless of the outcome of the North Carolina Supreme Court’s rehearing proceedings in Harper II,” the letter states. “Petitioners ask this Court to decide whether state courts can play any role in adjudicating congressional redistricting maps. No matter how the North Carolina Supreme Court rules on rehearing of Harper II, that issue will remain live before this Court.”
Read the full supplemental briefing letter here.
The U.S. Supreme Court requested supplemental briefing in Moore on March 2, 2023, asking parties what the effect was on its jurisdiction following the North Carolina Supreme Court’s rehearing of the December 16, 2022, decision in Harper v. Hall. That decision, Harper II, considered whether the remedial maps used in the 2022 election were still unconstitutional partisan gerrymanders.
The North Carolina Supreme Court’s earlier February 2022 opinion, Harper I, struck down the original 2021 state legislative and congressional maps enacted by the North Carolina legislature as unconstitutional gerrymanders, and is the decision that was appealed to the U.S. Supreme Court in Moore.
Oral arguments in Moore took place on December 7, 2022. At that time, the N.C. Supreme Court had already rejected gamesmanship in mapmaking in Harper II by ruling the partisan gerrymandering disproportionately and unconstitutionally came at the expense of minority voters in the state. Once the North Carolina court changed partisan composition in early 2023 however, it granted a rehearing of the later remedial decision issued in December at Republican legislators’ request. The time for rehearing Harper I is long past, but legislators have asked the North Carolina Supreme Court to overrule that decision as well.
Some court watchers have questioned whether the move in North Carolina would moot the Moore case. The supplemental brief filed today by Neal Kumar Katyal, a partner with Hogan Lovells and co-counsel with Southern Coalition for Social Justice (SCSJ) representing Plaintiff Common Cause, set forth why the state proceedings do not change the Supreme Court’s ability to issue a decision in Moore:
“This Court should not wait until this question comes before it on an emergency basis in the lead up to the 2024 election cycle,” wrote Katyal, who also argued the case before the U.S. Supreme Court Justices in December 2022. “The question presented is fully briefed, thoroughly argued, and ripe for decision. This Court is the only forum that can definitively resolve that question and provide guidance to state legislatures and state courts across the country.”
Voting rights advocates have called Moore’s ISLT argument a grave threat to democracy. The legislators who subscribe to this theory pervert the Elections Clause in the U.S. Constitution to assert that state legislatures alone have the power to determine how federal district maps should be drawn, and furthermore that state courts cannot intervene in that process, nor can state constitutions be enforced if they are contrary to the will of a group of lawmakers who seek to entrench their power.
“We knew from the start this brazen power grab was wrong and flew in the faces of the U.S and North Carolina Constitutions,” said Bob Phillips, Common Cause North Carolina’s Executive Director. “Nothing has changed on that front. We need the U.S. Supreme Court to toss this nonsensical ‘independent state legislature theory’ into the dustbin where it belongs — and there is no better time than now when we aren’t on the eve of a major election.”
Oral arguments in Moore lasted three and a half hours, a lengthy period of time in which the U.S. Supreme Court Justices examined the flimsy legal underpinnings of the dangerous ISLT that would erode people’s voting rights.
“ISLT was wrong when this matter was briefed and argued before the Supreme Court in 2022, and it remains wrong in 2023,” said Hilary Harris Klein, Senior Counsel for Voting Rights at SCSJ. “Nothing that has happened in the state proceedings has changed this fact, and the arguments and briefing show definitively that voters deserve an unambiguous rejection of this dangerous theory by our country’s highest court.”
A decision in Moore is expected early this summer.
“Checks and balances were embedded throughout our Constitution to prevent any one person, group or political party from unjustly seizing power that rightly belongs to the people,” said Kathay Feng, Common Cause’s Vice-President for Programs. “The U.S. Supreme Court, when they release their decision in a few months, must reject this reckless attempt to hand state lawmakers unchecked power to manipulate our elections.”
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The Southern Coalition for Social Justice, founded in 2007, partners with communities of color and economically disadvantaged communities in the South to defend and advance their political, social, and economic rights through the combination of legal advocacy, research, organizing, and communications. Learn more at southerncoalition.org and follow our work on Twitter, Facebook, and Instagram.
Common Cause is a nonpartisan, grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity, and representation for all; and empower all people to make their voices heard in the political process.