The country’s top state judges have taken aim at a Supreme Court case petitioned by North Carolina Republican lawmakers that seeks to determine whether courts or legislatures have the final say over congressional district lines.
The Conference of Chief Justices, a bipartisan group of top judges in all 50 states, filed an amicus brief Tuesday in the high court case Moore v. Harper, expressing disagreement with North Carolina GOP lawmakers over a map drawn by the GOP-led state legislature for the state’s 14 House districts. The state Supreme Court smacked down the map on Feb. 14 by a 4-3 vote and ruled the districts were gerrymandered, or drawn in a way that was intentionally biased against Democrats.
North Carolina Republican House Speaker Tim Moore, Senate Leader Phil Berger, and other top GOP lawmakers are petitioners in the case and argue the U.S. Constitution’s elections clause grants authority to state legislatures to regulate the “times, places, and manner of holding elections” and that state executive and judicial branches should have no say in the process.
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But the Conference of Chief Justices argued Tuesday that the elections clause does not prevent state courts from reviewing congressional maps for violations of state constitutions.
“The Elections Clause does not derogate from state courts’ authority to decide what state election law is, including whether it comports with state and U.S. Constitutions,” the conference’s lawyers wrote.
The dispute stems from a separate but related case, Harper v. Hall, involving Democratic-aligned plaintiffs who were represented by a group associated with the National Democratic Redistricting Committee. The group appealed to the state Supreme Court after North Carolina’s legislature passed a version of the congressional map in November, arguing the map violated the state constitution’s provisions for free elections and freedom of assembly.
After the state Supreme Court’s Feb. 4 decision, which issued its 127-page opinion later on Feb. 14, a lower state court on Feb. 23 rejected a redrawn map submitted by the legislature and opted to adopt a different map drawn by a bipartisan group of four redistricting experts. The GOP-backed map would have made the districts of Democratic Reps. G.K. Butterfield and Kathy Manning more competitive for Republicans.
Moore described the rejection of Republican maps as “egregious” and filed an emergency application to the U.S. Supreme Court in March that was rejected. The justices eventually granted cert over the petition on June 30, teeing up the dispute for oral arguments in the fall 2022 term.
In the previous major Supreme Court case on gerrymandering, Rucho v. Common Cause, justices voted 5-4 along traditional conservative-liberal ideological lines that federal courts cannot review partisan gerrymandering claims.
Chief Justice John Roberts wrote for the conservative majority, holding that “federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
While high court justices initially declined North Carolina legislators’ emergency petition in an unsigned order in March, Republican-appointed Justice Samuel Alito wrote a dissent, joined by Justices Clarence Thomas and Neil Gorsuch, signaling a willingness to deliberate over Moore, along with a concurrence from Justice Brett Kavanaugh.
In a separate Moore-related amicus brief filed on behalf of the GOP petitioners Tuesday, the nonpartisan Honest Elections Project sought to portray an originalist standpoint for why the “Constitution plainly gives legislatures the power to write election laws,” according to a statement from Jason Snead, executive director of the group.
Snead said the North Carolina Supreme Court relied on “unprecedented interpretations” of vague portions of the state’s constitution to take control of congressional redistricting following the February decision.
“That ruling sets a dangerous precedent: that rogue courts can ignore the U.S. Constitution and rewrite the laws of our democracy behind closed doors,” Snead added.
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At least 21 amicus curiae, or “friend of the court,” briefs were introduced before Tuesday’s deadline for submissions, with filings that included 13 Republican-led states in support of the petitioning North Carolina lawmakers and several bipartisan groups in support of “neither party.”
The high court will hear arguments over Moore in the fall term, which begins in October. A date has not been selected for oral arguments, and a decision is expected by June next year.
