U.S. Supreme Court directs parties to file additional supplemental briefs in Moore v. Harper

The U.S. Supreme Court on May 4 directed the parties in Moore v. Harper to file supplemental letter briefs in the case by May 11. The court’s order asked the parties, “What is the effect on this Court’s jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court?

On April 28, the North Carolina Supreme Court overturned its February 2022 decision that the state’s enacted congressional and legislative maps were unconstitutional due to partisan gerrymandering. It struck down the maps the legislature enacted in 2021 and the remedial maps used for the 2022 elections. The court’s order also said that the legislature’s original 2021 maps were developed based on incorrect criteria and ruled that the General Assembly should create new congressional and legislative boundaries for use starting with the 2024 elections.

In its ruling, the court said, “we hold that partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution. Accordingly, the decision of this Court in Harper I is overruled. We affirm the three judge panel’s 11 January 2022 Judgment concluding, inter alia, that partisan gerrymandering claims are nonjusticiable, political questions and dismissing all of plaintiffs’ claims with prejudice.”

Amy Howe wrote at SCOTUSBlog that the U.S. Supreme Court “asked lawyers…to weigh in on whether the court can still hear the case in the wake of a recent ruling by the North Carolina Supreme Court, which reversed its earlier decision in the underlying redistricting dispute that sparked the case…Once those briefs have been filed, the justices could dismiss the case (as one set of challengers has already suggested they should), or they could continue to decide the case on the merits.”

Howe also wrote, “The timing of the justices’ decision likely could depend on the result that it reaches. An order simply dismissing the case could come relatively quickly after the supplemental briefs are filed on May 11, although such an order could take longer if it is accompanied by separate dissents or statements from one or more justices. In any event, the justices are expected to act on the case by late June or early July, when they begin their summer recess.”

The parties in the case also filed supplemental briefs with the U.S. Supreme Court on March 20 at SCOTUS’ request after the North Carolina Supreme Court announced it would re-hear the case. The briefs outlined each party’s view on whether SCOTUS still had jurisdiction in light of the state court’s decision. The legislators that brought the case and one of the respondents—Common Cause—told the justices that the court should still decide the case. The other respondents wrote that the U.S. Supreme Court should dismiss the case for lack of jurisdiction because the original case was still under appeal.

As a result of state supreme court elections in 2022, the North Carolina Supreme Court flipped from a 4-3 Democratic majority to a 5-2 Republican majority. In the 2022 legislative elections, the state elected 7 Democratic U.S. House members and 7 Republican ones. Republicans won partisan control of the state Senate, 30-20, and the state House of Representatives, 71-49.

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