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.