The following is a guest post from Richard Bernstein, who wrote this amicus brief in Moore v. Harper but who expresses his own views here:

Although I wrote and joined an amici brief supporting affirmance in Moore v. Harper, recent developments counsel that the best course for the U.S Supreme Court now is to vacate and remand the North Carolina Supreme Court’s February 2022 opinion and order—called Harper I.  A Supreme Court vacatur would enable the current North Carolina Supreme Court to address two points of North Carolina law that became unclear after the oral argument in Moore v. Harper on December 7, 2022.  The first is whether Harper I remains a correct statement of North Carolina law in light of the current North Carolina Supreme Court’s decision to consider overruling Harper I as part of its rehearing of Harper II.  The second is whether, if the North Carolina Supreme Court overrules Harper I, it will also lift Harper I’s prospective injunction against use of the North Carolina legislature’s 2021 map for the 2024 and subsequent congressional elections.

            Let’s begin where everyone agrees:  The North Carolina Supreme Court currently has jurisdiction in its pending rehearing of Harper II to overrule Harper I on state law grounds.  Petitioners in Moore v. Harper nevertheless contend that, because the North Carolina Supreme Court has a 15-day time limit on seeking rehearing, it is too late for the North Carolina Supreme Court to lift Harper I’s prospective injunction and thereby reinstate the 2021 legislature’s map for future elections.  Apparently, in Petitioners’ view, all the North Carolina Supreme Court’s rehearing of Harper II could do by overruling Harper I would be to enable the current North Carolina legislature to enact a new statute with a map identical to the 2021 map, or some other map, that would not be subject to judicial review based on partisan gerrymandering.

            That limit on judicial relief is far from obvious.  Indeed, if North Carolina law is the same as federal law, Petitioners’ limit would be wrong pursuant to Agostini v. Felton, 521 U.S. 203 (1997).  In Agostini, the Supreme Court simultaneously overruled a 12-year-old case called Aguilar v. Fenton, 473 U.S. 402 (1985), and lifted prospectively a permanent injunction issued previously in the Aguilar case itself.  In dissent, Justice Ginsburg, joined by three other Justices, argued that lifting the injunction contravened a Supreme Court rule setting a 25-day time limit for a rehearing petition.  See Agostini, 521 U.S. at 255.  The Agostini majority, however, relying on the principles codified in Federal Rule of Civil Procedure 60(b)(5), ruled that a federal court had no discretion other than to lift the prospective application of the earlier injunction in light of the overruling of Aguilar.  Agostini held that a prospective injunction is inequitable and “cannot be permitted to stand if we find it rests upon a legal principle that can no longer be sustained.”  521 U.S. at 238; see id. at 215.

            Although North Carolina Rule of Civil Procedure 60(b)(5) is identical to its federal analog, perhaps the current North Carolina Supreme Court would adopt a position akin to the Agostini dissenters as North Carolina law and leave the Harper I injunction in place prospectively even if Harper I is overruled on a state law ground.  But that state law issue is for the state supreme court to decide.

            Because only the North Carolina Supreme Court can resolve unclear issues of state law, the Supreme Court’s discretionary and sua sponte decision to vacate and remand in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), supports a similar approach in Moore v. Harper.  In Palm Beach, the Supreme Court declined to address “at this time” any version of what we now call the independent state legislature theory because two antecedent points of Florida law were “unclear.”  531 U.S. at 78.  It was only after the Florida Supreme Court’s clarifying decision on remand that the Supreme Court’s majority opinion in Bush v. Gore, 531 U.S. 98 (2000) (per curiam), could honestly say that the Supreme Court was “forced to confront” the federal constitutional issues raised by the recount in the 2000 presidential election in Florida.  Id. at 111.

            Contrast what the Supreme Court faces now if it does not vacate.  Suppose that the North Carolina Supreme Court issues its rehearing decision before the Supreme Court issues its decision in Moore v. Harper.  And suppose the North Carolina Supreme Court overrules Harper I, but does not resolve whether Harper I’s injunction against the 2021 legislature’s map nonetheless remains in place.  It would look like an advisory opinion—or what lay people call a power grab—for the U.S. Supreme Court subsequently to issue a major constitutional decision that either reverses (or affirms) a state court decision that the state court has already overruled.

Alternatively, the Supreme Court could race to get its decision in Moore v. Harper out the door before the North Carolina Supreme Court’s rehearing decision.  Such haste would be just as unseemly.  Just shy of 230 years ago, the Justices of the U.S. Supreme Court explained to President George Washington that a foundation of the rule against advisory opinions is that the Constitution makes the Supreme Court “a court in the last Resort.”  Letter to George Washington from Supreme Court Justices, Aug. 8, 1793.  The Supreme Court should vacate and remand in Moore v. Harper so that it will address any federal constitutional issue in that case only as “a court in the last Resort.”

Kimberly Strawbridge Robinson for Bloomberg Law:

The US Supreme Court’s surprise decision to seek additional briefing in a North Carolina voting case could push an open question on the role of state officials in setting federal election rules into 2024.

The justices, who have already heard the case, gave the parties until March 20 to submit additional briefs. They want to know whether action in February by North Carolina’s state supreme court means that the lower court intends to snatch it back and possibly rule anew.

The possibility that the case is delayed or dropped or if the North Carolina court takes things in another direction means there might not be a resolution before next year’s balloting.

While the big question centers on Republican efforts to get more power for state legislatures over elections in congressional races, critics of the litigation say a change in law by the Supreme Court also could extend to the presidential race. This heightens the urgency for clarity from the high court even more due to the tense climate nationally over elections for federal office, election law experts say.

It would be “good for the country” if the justices clarify the issue ahead of the 2024 vote, said Ohio State law professor Edward Foley. “Everyone needs to know the rules of the road.”

UCLA law professor Rick Hasen said in a “Cases and Controversies” podcast that Moore v. Harper was “probably the most complicated election case I’ve had to explain.”

I appreciate Rick H.’s perspective on the issue of potential mootness in Moore v. Harper. Indeed, I think if the North Carolina Supreme Court reverses its partisan gerrymandering decision, it’s hard to think that even a malleable doctrine like “capable of repetition yet evading review” (which has historically been left to factual recurrence for the specific parties in the case) would allow the Court to rehear the case.

But I wonder about this claim: “Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.”

I think there’s a different, and very practical, reason for the litigants here, and the North Carolina Supreme Court, to move quickly.

The issue in Moore for the United States Supreme Court is only about the congressional maps. But rehearing in the state courts allows for review of both the congressional maps and the state legislative maps. And there are many reasons, I think, why the current North Carolina legislature would want to move quickly to address both sets–including, importantly, its own maps.

On December 16, 2022, the North Carolina Supreme Court approved the extension of the remedial map through the next decennial census, but reversed on another map and remanded to the trial court for modification. But before that case could be sent back, the legislature sought rehearing before the state supreme court.

The failure to seek rehearing would have allowed the case to drop back to the district court, a remedial map (that the legislature didn’t prefer) to be put in place for the 2024 election, then a need to get back to the state supreme court for review of that decision, with hope to resolve these issues ahead of any deadlines to pass constitutional and statutory muster for petitioning requirements, along with the pragmatics of identifying which districts the members of Congress and of the state legislators are running in.

One could wait for the decision in the congressional maps case to then resolve the rest of the issues. But North Carolina has some of the earliest legislative deadlines in the country. Its primary elections will be in March 2024. Its filing deadline is in December 2023. Its petitioning in lieu of a filing fee requirements, which must be met by December 2023, have to take place in the “election area” where one is seeking office.

This is a long way of saying, I think the decision to seek rehearing may well be less about the specifics of Moore v. Harper and any likelihood of success, and more the fact that there’s a separate issue of state legislative elections that the legislature wants to resolve. It doesn’t want to wait around for the United States Supreme Court to wait on one part of the issue and potentially put its preferred maps for 2024 at risk.

I have written this piece for Slate. It begins:

Will a power grab by the new Republican majority on North Carolina’s Supreme Court—ostensibly to reverse a power grab by the earlier Democratic majority on North Carolina’s Supreme Court—deprive conservatives on the United States Supreme Court of a power grab over U.S. elections? Or will it just delay an urgent election ruling to a much worse time—when it could decide the outcome of a major election?

The Supreme Court’s potential blockbuster election decision in Moore v. Harper, now expected by late June, could soon be rendered moot by an order that the North Carolina Supreme Court issued on Friday to rehear the underlying case. If Republican state justices in North Carolina moot Moore, it might simply delay an outcome on an issue that should be resolved sooner rather than later….

The good government group Common Cause and others sued over the new map, claiming it was a blatant partisan gerrymander that violated the Equal Protection Clause of the U.S. Constitution. In 2019’s Rucho v. Common Cause case, the Supreme Court in a 5-4 decision held that federal courts lacked judicially manageable standards to decide when taking partisanship into account might go so far. Chief Justice John Roberts, for the majority, said there were other ways to deal with the problem, like state courts applying state constitutional standards, Congress passing a statute governing congressional redistricting, or voter initiatives.

Undaunted, Common Cause went to the North Carolina state courts, arguing that partisan gerrymandering violates a part of the state constitution guaranteeing free and equal elections. The group was successful, with a lower court striking down the gerrymandered maps of the previous decade and forcing the 2020 election be run with new maps. It then secured a ruling from the North Carolina Supreme Court that the new congressional districts drawn for this decade violated the state constitution as well.

The politics of the state ruling was not lost on anyone who follows North Carolina politics. The North Carolina state constitution gives only its general assembly the right to draw congressional districts; the state’s Democratic governor, Roy Cooper, has no say. The state Supreme Court had a Democratic majority when it ruled that the redistricting violated the state Constitution, and Republicans attacked the ruling as a power grab. It’s worth noting that those same Republicans didn’t complain when similar state court rulings led to opposite outcomes, like when New York’s courts struck down its Democratic gerrymander of congressional districts as a partisan gerrymander under the New York Constitution, leading to a much more favorable map for Republicans in that state….

This past Friday, on a 5-2 party line vote, the North Carolina Supreme Court agreed to hear the case and rejected Common Cause’s petition to dismiss the rehearing request. Justice Anita Earls, an elected Democrat and former election law litigator, dissented: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” She called the decision “an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’”

The decision to seek rehearing is a curious one, and indicates some doubts on the part of Republicans that the U.S. Supreme Court’s decision in Moore would be a favorable one. After all, if you think there is a chance of getting a good ruling from the U.S. Supreme Court, why moot your case? And if you lose in the Supreme Court, you could always go back to the state supreme court in a new case to get the state court to reverse course.

Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.

Common Cause too may have reasons to argue for the case’s mootness. After all, a bad decision in North Carolina rejecting a partisan gerrymandering claim under the state constitution would only affect that state. In contrast, an embrace of the independent state legislature doctrine by the U.S. Supreme Court would have negative effects around the country.

But there is a cost here of throwing out the Moore case at this stage, and it is not just all of the lost effort on the part of lawyers, justices, and clerks. The ISL theory is not going away. It has come up in numerous cases over the last few years, and it is going to keep arising until the Supreme Court resolves it. Given the weaknesses of the legislators’ arguments in Moore, it seems like a pretty good case in which to get some clarity.

Moreover, it is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election. It is far worse when the Supreme Court’s involvement in election cases is outcome determinative, casting new doubts on the legitimacy on the courts and the electoral process. In this case, there is no individual outcome being threatened, but rather a group of future maps. And better to have rules set and understood in advance, then figured out after the fact….