Moore v. Harper – the major election case in the U.S. Supreme Court centered on what was once considered fringe “independent state legislature theory” – reportedly could be thrown out.
That’s because the North Carolina Supreme Court announced Friday that it granted a request from GOP leaders in the state legislature to rehear the redistricting case known at the state level as Harper v. Hall.
The decision comes less than two months after the state’s highest court’s previous edition, led by Democrats, issued major opinions going against GOP legislators who had been sued.
On Friday, the five justices with Republican voter registrations on the seven-member court issued orders to rehear the redistricting case – as well as a separate case on voter registration – meaning that both issues will return to the court for oral arguments in mid-March.
SUPREME COURT TO HEAR NORTH CAROLINA REDISTRICTING CASE THAT MAY HAVE 2024 IMPLICATIONS
NPR reported that it will depend on how the state court rules following the March 14 scheduled rehearing in Harper v. Hall as to how the related case plays out before the U.S. Supreme Court.
The state rehearing could strike down precedent from the Supreme Court in February 2022 declaring the state constitution outlawed extensive partisan gerrymandering. That landmark redistricting ruling prevented maps drawn by Republican legislators that were expected to secure long-term Republican advantages in the General Assembly and within the state’s congressional delegation.
North Carolina Attorney General Josh Stein spoke in front of the U.S. Supreme Court in Washington, D.C., on Dec. 7, 2022, after oral arguments in Moore v. Harper. (Olivier Douliery/AFP via Getty Images)
The GOP lawmakers’ attorneys contend the previous 4-3 Democratic majority got it wrong in December when they struck down a state Senate map the legislature drew and upheld congressional boundaries drawn by trial judges but opposed by Republicans.
They said those same Democrats erred when upholding the invalidation of a 2018 law requiring photo identification to vote when they applied the wrong legal standard.
The U.S. Supreme Court last heard arguments on Moore v. Harper in December. The country’s highest court could move forward with its own ruling sometime before its term ends in late June. But that could also depend on the outcome of the North Carolina Supreme Court’s rehearing in March.
“The timing matters. Even if the North Carolina Supreme Court ultimately says that the prior opinion was a mistake, if they do that after the [U.S.] Supreme Court rules in Moore v. Harper, I don’t think it matters,” Carolyn Shapiro, a law professor and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, told NPR. “There’s a little bit of a game of chicken.”
The U.S. Supreme Court might consider Moore v. Harper moot depending on the outcome of a rehearing on the state-level case before North Carolina’s highest court. (Celal Gunes/Anadolu Agency via Getty Images)
Moore v. Harper, considered to have sweeping implications on upcoming federal elections, especially in 2024, is grounded in the idea of “independent state legislature theory.”
The concept argues that the U.S. Constitution gives state legislatures a special kind of power of determining how federal elections are run without any checks or balances from state constitutions or state courts, according to NPR.
State GOP lawmakers had argued that the North Carolina Supreme Court, at the time under Democratic majority, overstepped its authority in striking down the congressional districts.
With hopes of getting new legal results, lawmakers led by House Speaker Tim Moore and Senate leader Phil Berger asked two weeks ago that the justices rehear the litigation.
On Friday, the two Democratic justices lamented the state Supreme Court orders and said they stood against more than 200 years of court history in which rehearings have been exceedingly rare. They said it appeared it was happening simply because the court’s partisan makeup had changed.
The U.S. Supreme Court last heard oral arguments in the Moore v. Harper case on Dec. 7, 2022. (Kent Nishimura/Los Angeles Times via Getty Images)
Two new Republican justices took office in early January after winning November elections for seats held by Democrats.
“The legal issues are the same; the evidence is the same; and the controlling law is the same,” Associate Justice Anita Earls wrote in the dissent of the order agreeing to rehear the redistricting case. “The only thing that has changed is the political composition of the Court.”
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Earls wrote Friday’s action marked a “radical break” from the court’s history. Since 1993 alone, she said, rehearing had been allowed in only two cases out of 214 such requests.
“Respect for the institution and the integrity of its processes kept opportunities for rehearing narrow in scope and exceedingly rare,” she wrote. “Today, that tradition is abandoned.”
Associate Justice Mike Morgan also dissented.