Why Haven’t the Parties in Moore v. Harper (At Least Publicly) Alerted the Supreme Court That The Case May Be Mooted by the North Carolina Supreme Court?

With news today that the Supreme Court cancelled oral argument in the Title 42 case on immigration after the Biden DOJ informed the Court that the Title 42 policy will end in a few months with the end of the declared covid emergency, I checked again over at the Supreme Court docket in Moore v. Harper, the so-called “independent state legislature” case with potentially profound implications for election law.

The last entry on the public docket is a Dec. 21 letter from the parties letting the Court know that the North Carolina Supreme Court had issued an order an opinion on the partisan gerrymandering remedy in the same case, which the parties now refer to as Harper II. That was one of the last opinions issued by North Carolina’s Supreme Court before it went from Democratic majority to Republican majority.

I wrote at Slate back on February 6 about how the North Carolina Supreme Court took the highly unusual step of granting rehearing in Harper II, and the petition for rehearing asks that court to reconsider the underlying ruling in Harper I (the very same case now up before the U.S. Supreme Court) holding that partisan gerrymandering violates the state constitution. If the North Carolina court agrees that partisan gerrymandering is just fine under the state constitution, that almost certainly moots the case before the U.S. Supreme Court.

That rehearing grant, as well as a quick oral argument schedule that will have the case heard next month, would seem to be worth bringing to the Supreme Court’s attention. Perhaps there have been conversations with the clerk’s office that are not reflected on the public docket. Otherwise, this is very curious.

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