The following is a guest post from Richard Bernstein, who wrote an amicus brief supporting affirmance in Moore v. Harper but who expresses his own views here:
Whatever your view of the Elections Clause issues in Moore v. Harper, the battling 2022 and 2023 decisions of the North Carolina Supreme Court seem to reflect that at least some elected state court judges have difficulty divorcing their judicial views of partisan gerrymandering from their partisan affiliations. We can hope that in the final chapter of Moore v. Harper in the U.S. Supreme Court, the Justices will do better. These unelected, life-tenured Justices should be able unanimously to dismiss Moore v. Harper on either or both of two jurisdictional grounds.
To start, the U.S. Supreme Court lacks jurisdiction under 28 U.S. § 1257. This provision limits appellate jurisdiction over state courts to “[f]inal judgments or decrees” by a state’s highest court. The petitioners’ March 20, 2023 letter brief argued they were appealing from two final judgments of the North Carolina Supreme Court. Letter brief at 1–3. The first was the February 4, 2022 order and February 14, 2022 opinion of the North Carolina Supreme Court which, together, everyone calls Harper I. Harper I reversed a January 11, 2022 judgment of a three-judge North Carolina trial court that had ruled that there were no justiciable claims against partisan gerrymandering under the North Carolina Constitution.
Harper I also remanded for the trial court, if necessary, to draw its own congressional map for the 2022 election. The trial court did so in a February 23, 2022 order. The second final judgment that petitioners argued they were appealing was the North Carolina Supreme Court’s order, also issued on February 23, 2022, that denied a stay of the trial court’s map. Letter brief at 3.
The April 28, 2023 decision of the North Carolina Supreme Court—which I will call Harper III—has made both of the final judgments previously identified by petitioners nullities under North Carolina law. Harper III did not merely overrule Harper I as a precedent prospectively. Harper III wiped Harper I off the books in its own case. Thus, where Harper I had reversed the state trial court’s January 11, 2022 order, Harper III expressly “affirm[s] 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.” Opinion at 10, 145–46. Whether Harper I was once a final judgment no longer matters. Harper I is defunct.
Harper III also has nullified the second purported final judgment of the North Carolina Supreme Court from which petitioners appealed. That was the North Carolina Supreme Court’s order that declined to stay the state trial court’s February 23, 2022 order that drew a congressional map for the 2022 election. Harper III did more than stay the trial court’s map: “The three-judge panel’s 23 February 2022 order addressing the Remedial Plans is vacated. Plaintiffs’ claims are dismissed with prejudice.” Opinion at 146.
These same portions of Harper III independently render Moore v. Harper moot. The petitioners in Moore v. Harper were the defendants in the North Carolina proceedings. As noted, Harper III “dismiss[ed] all of plaintiffs’ claims with prejudice.” Opinion at 10 (emphasis added). Surely, a defendant’s subsequent total victory moots a defendant’s appeal of a prior decision that now has been nullified.
There is no possible additional relief that the U.S. Supreme Court could grant petitioners. The relief sought by petitioners in the U.S. Supreme Court had been to “revive the General Assembly’s original  congressional map.” March 20, 2023 letter brief at 2. Harper III already gave petitioners more than they had sought in the U.S. Supreme Court. Describing how the legislature drew the 2021 map based on the “mistaken interpretation of our [North Carolina’s] constitution” that the state constitution in any way limits partisan gerrymandering, Harper III ruled that “[t]he [current] General Assembly shall have the opportunity to enact a new set of legislative and congressional redistricting plans,” with as much “partisan gerrymandering” as the legislature chooses. Opinion at 142–44.
Petitioners cannot escape the statutory and Article III bases for dismissing Moore v. Harper by arguing that the federal issues they have raised are capable of repetition yet would evade review. To start, there is no “capable of repetition” exception to the jurisdictional limits of 28 U.S.C. § 1257.
Even looking at mootness, the federal Elections Clause issue raised by petitioners is not capable of repetition as to these petitioners. To the contrary, Harper III holds the North Carolina General Assembly may draw congressional districts for 2024—and beyond—that have as much “partisan gerrymandering” as possible. Opinion at 141–44.
Of course, anti-partisan gerrymandering claims concerning congressional redistricting might continue to arise in other cases under the constitutions of states other than North Carolina. But whether such claims are preempted by the federal Elections Clause will not evade review by the U.S. Supreme Court. The Court has already addressed on the merits the application of state constitutions to congressional redistricting three times. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015); Smiley v. Holm, 285 U.S. 355 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). Moore v. Harper apparently would have been the fourth time—except for the truly anomalous situation that the change in membership of an elected state supreme court led to the nullification of an earlier decision of that court after the U.S. Supreme Court had granted certiorari and before the U.S. Supreme Court’s decision on the merits. That aberrant chain of events is most unlikely to be repeated.
There will be future opportunities for the U.S. Supreme Court to address any limits the Elections Clause places on the application of state constitutions to congressional redistricting and other aspects of federal elections. The Court should not misuse the husk of Moore v. Harper to render an advisory opinion in advance. Doing so would damage the neutral principles that govern the statutory and constitutional limits on the Supreme Court’s appellate jurisdiction.