On a 5-2 vote along party lines, the North Carolina Supreme Court has granted rehearing to reconsider its decision striking the state’s congressional districts as unconstitutional partisan gerrymanders under the state constitution. It is also considering the state districts as well as a separate voter id case; these were each decided just before the partisan majority on the Supreme Court changed. Justice Earl in her dissents calls out the court for granting the unusual rehearing and rejecting Common Cause’s motion to dismiss; the says that this is going to further politicize the judiciary and undermine the legitimacy of the courts.
The court put the congressional districting briefing on a very quick time frame, and it raises the question whether the U.S. Supreme Court’s decision in Moore v. Harper could become moot, after a lot of briefing and argument has already been considered by the Supreme Court on the independent state legislature theory.
Back on November 9, I wrote:
Could the Flipping of the North Carolina Supreme Court to Republican Control Moot the Moore v. Harper Case about the Independent State Legislature Doctrine?
With news that the North Carolina Supreme Court has flipped to Republican control, there is a good chance that the this court’s holding that partisan gerrymandering violates the state constitution will be overturned. That ruling will allow Republicans to draw a partisan gerrymander of North Carolina’s congressional districts in time for the 2024 elections.
But it also may moot Moore v. Harper, the big “independent state legislature”/Elections Clause case. That case argues that the North Carolina’s ruling violated the power of the state’s general assembly to decide on the shape of congressional districts.
There have been a ton of amicus briefs filed (including my own) and oral arguments are set for December 7. Not clear to me how quickly a case could make it to the state Supreme Court to cause it to reconsider its partisan gerrymandering ruling, and if there might be an incentive to hold those suits to get a ruling from the U.S. Supreme Court on this issue.
Now, via Democracy Docket, comes this this petition for rehearing in the North Carolina Supreme Court in the remedial phase of the Harper case involving the maps. The case specifically asks for the original holding—-that the North Carolina congressional districts are an unconstitutional partisan gerrymander under the state constitution—be overturned.
If that case is overturned before the Supreme Court decides Moore, it seems to me that it likely moots the case.
Indeed, I wonder if SCOTUS will delay deciding this case if the NC Supreme Court grants rehearing.
I don’t know that the NC court would do so. As Marc Elias argues, doing so would be a radical act. But it could happen and then call into question whether we will find out the vitality of the independent state legislature theory or not in Moore.