Earlier this month, I highlighted the confusion around the jurisdictional issue in Moore v. Harper now that the North Carolina Supreme Court granted rehearing in Harper II and is reconsidering the holding in Harper I (i.e., the case the Court granted cert to hear in Moore v. Harper). Will Baude has excellent thoughts here, too.
A couple of things have transpired since then. I think the Court retains jurisdiction, but it’s never a sure thing.
First, the North Carolina Supreme Court had oral argument in Harper II. This exchange between Justice Dietz and the legislature’s attorney Phil Strach was extremely helpful (to me). Rough transcript below:
Justice Dietz: Your argument here I think helps illuminate a question I had about Moore v. Harper. The Supreme Court of the United States entered an order in the Moore v. Harper case and asked the parties for further briefing on what I understand to be essentially just the final judgment doctrine. And I can understand asking for supplemental briefing on that question because it does seem, if jurisdiction requires the final judgment or decree of a state court, you could look at just what’s happening in this case and say, well, that doesn’t seem to have happened here, because we’re talking about, we have these two names, Harper I and Harper II. There was a decision Harper I that became Moore v. Harper in our nation’s highest court, it’s still pending there and here we are, the state court, in the same case, continuing to do things, that just doesn’t sound you know to an ordinary person like there could have been a final judgment or decree. But the Supreme Court issued a writ of certiorari, it had argument in the case, it didn’t seem to be a big part of the case, but I can see them struggling with that. But what was strange in the order is they said they wanted this briefing because of what this court had done last month in granting rehearing, so in your understanding is there something about granting rehearing under Rule 31, just a part of our rules of Appellate Procedure here, the state level, that would render what’s going on in Moore v. Harper not a final judgment?
Strach: Not to my knowledge, although, your honor, I will be honest, the U.S Supreme Court is going to do what the U.S Supreme Court will do. The argument that we’ve made here to this court, which I think is also applicable in that case, is that the actual judgment in Harper I, the injunction that enjoined the 2021 plans, that’s never been disturbed. That cannot be disturbed, because no one ever petitioned to re-hear that. What we’re simply asking for is to vacate withdrawal Harper II, which can be withdrawn because the time for rehearing has had not passed, and overrule Harper 1 as precedent. That means this court will be saying the standards in Harper I, which this court tried to apply in Harper II and failed, are no longer applicable.
Justice: Okay so I think you’ve answered my questions, what I was trying to figure out. So you’re not arguing that this court, right now in this proceeding, is in any way re-hearing or reopening the decision in Harper I, that’s now being reviewed by the Supreme Court of the United States, Moore v. Harper.
Strach: Right we couldn’t ask this court to rehear Harper I, the time has passed but we are asking the court to overrule Harper I, because Harper II was based on Harper I, and if Harper II is withdrawn, Harper I must be overruled, that’s our position.
Justice Dietz: A follow-up I have to that then is, there’s this principle we have in our state court system in North Carolina that goes back I think at least 100 years, this the concept is functus officio, the idea being that when a higher court takes up some issue, all the matters that are embraced by that issue that’s now with some higher court are removed from the lower courts. So all lower courts are divested to jurisdiction over those issues until the higher court resolves them. And so for example we routinely apply that, both for the trial courts and with the court of appeals here. I’m not aware of this court ever having looked to the Supreme Court of the United States and said, well, under our state principles about functus officio, the Supreme Court United States is a higher court for us, but it that doesn’t seem to be the case here. I mean if the Supreme Court takes an issue and says, we think that some interpretation of the State Constitution by a state court violates the Constitution of the United States, that while that’s under consideration, you know, it’s certainly a higher court from the perspective of the of the Supreme Court of the state. Would you–so what I’m trying to understand is do we have jurisdiction to keep doing things in this case. If for example you’re saying overrule Harper I, it seems that doing that would Moore v. Harper, do we have the authority to to do that, or are we divested of jurisdiction. And of course this is only as of the congressional districts, I should highlight, not as to you know our question of the state house and state senate lines, but what’s your position on that?
Strach: Correct. So, this court certainly has the authority to overrule Harper I notwithstanding Moore v. Harper. Again, the injunction enjoining the 2021 plans has never been disturbed and will never be disturbed by anything we’re asking this court to do. And this court does not have to disturb that injunction. And if the U.S Supreme Court decides that the existence of that injunction gives it a final judgment over which to rule in Moore v. Harper, then the U.S Supreme Court will do that. But that does not in our opinion affect anything this court can or should do. or anything that we’re asked in the court to do.
In other words, the judgment in Harper I (i.e., Moore v. Harper) is not at issue in the North Carolina Supreme Court. So the United States Supreme Court retains jurisdiction.
Second, today was the deadline for the parties to inform the Supreme Court if there was any change to the jurisdictional issue. (Rick H. links to them here. The entire docket is here.)
The petitioners make a similar argument as arose at oral argument:
To be sure, Petitioners have called in their rehearing briefing for Harper I’s legal conclusions allowing partisan gerrymandering claims to be overruled as precedent. But they acknowledge that even if the North Carolina Supreme Court does so, that holding will not disturb the judgment of Harper I. Feb. 17, 2023 Legislative Defs.’ Suppl. Br. on Rehearing at 55 (“To overrule Harper I would not alter the [North Carolina Supreme] Court’s injunction against the [original] 2021 plans.”). Respondents have not disagreed. See March 3, 2023 Suppl. Br. of Pls. and Pl.-Intervenor on Rehearing. Harper I and the stay denial are simply beyond the reach of rehearing, and no party to this case has claimed otherwise. Rehearing in Harper II thus could affect the state of the law in North Carolina moving forward, but it will not affect the finality of the decisions under review in this case. Regardless of what the North Carolina Supreme Court does in Harper II, it will remain the case that the North Carolina Supreme Court in Harper I invalidated the General Assembly’s duly drawn congressional map under an improper understanding of the Elections Clause and in its subsequent stay denial allowed the 2022 congressional election in North Carolina to be conducted under a court-drawn map adopted in violation of the Elections Clause. Under Cox, those are final decisions within this Court’s jurisdiction.
Neal Katyal’s letter on behalf of the respondent Common Cause offers a similar view (with some light revisions):
Harper I represents the North Carolina Supreme Court’s final determination of the federal issue this Court granted certiorari to resolve. Harper II is an ongoing state-court proceeding concerning state law and state law alone. Harper II was not final when this Court granted certiorari, and the North Carolina Supreme Court’s decision to grant rehearing in Harper II does not affect this Court’s jurisdiction under 28 U.S.C. § 1257(a) to review Harper I. By granting certiorari, this Court “necessarily considered and rejected” the argument that it lacked jurisdiction to review Harper I due to the ongoing remand proceedings before the North Carolina courts. United States v. Williams, 504 U.S. 36, 40 (1992). The fact that the North Carolina Supreme Court may choose to overrule Harper I at some future point does not affect the finality of that judgment or prevent this Court from reviewing it, just as this Court’s grant of certiorari in a case where the question presented asks this Court to overrule one of its prior decisions does not render that prior decision any less binding on lower courts. This case is in precisely the same posture as when the Court granted certiorari.
. . . And although a grant of rehearing “open[s]” the “judgment,” the February 3 grant of rehearing only reopened Harper II—not Harper I. Cox asks whether a state high court has “finally determined the federal issue present in a particular case.” The state court did that in Harper I, and Harper I remains the final law on the Elections Clause in North Carolina. Finality cannot turn on whether the state court may reach a different conclusion in some later proceeding. Otherwise, this Court would lose jurisdiction every time a litigant asks a state court to overrule an earlier decision on a federal question that is pending before this Court. That cannot possibly be the law.
Those are all pretty good reasons, in my view, for the Supreme Court to retain jurisdiction in Moore v. Harper. But it’s not a sure thing, and that’s because the Solicitor General’s brief offers a different view:
On December 16, 2022, shortly after this Court heard oral argument, the North Carolina Supreme Court issued a decision in the ongoing remedial proceedings. On January 20, 2023, petitioners sought rehearing of Harper II. Their petition urged the North Carolina Supreme Court to “grant rehearing in Harper II, withdraw its opinion, issue a new opinion overruling Harper I by holding that partisan-gerrymandering claims present non-justiciable political questions, vacate the Superior Court’s judgment, and remand the case with directions to dismiss this action with prejudice.” The North Carolina Supreme Court granted rehearing and ordered supplemental briefing and oral argument, which was held on March 14. Those subsequent developments make it difficult to conclude that Harper I remains a “[f]inal judgment” within the meaning of 28 U.S.C. 1257(a) for two reasons. First, the threshold requirement shared by all of the Cox categories is that the highest state court has finally determined the relevant federal issue—here, whether the Elections Clause bars the application of a state constitutional prohibition on partisan gerrymandering to congressional maps. But the North Carolina Supreme Court is currently entertaining petitioners’ request to reconsider that federal issue in the course of further proceedings in this case. Second, the North Carolina Supreme Court’s grant of rehearing also means that it is difficult to say that the federal issue “will survive and require decision regardless of the outcome of future state-court proceedings,” as required under the second Cox category. If the North Carolina Supreme Court agrees with petitioners and rejects Harper I’s holding that the North Carolina Constitution prohibits partisan gerrymandering, that development would effectively moot the Elections Clause issue.
As to the first point raised, the Solicitor General repeatedly refers to the “issue” instead of the judgment in the case. True, Cox speaks of a state court finally determining a “federal issue.” But my sense is that the failure to revisit the judgment in state court means that Harper I is squarely in the United States Supreme Court, not the North Carolina Supreme Court. And that’s enough to retain jurisdiction. That was suggested at oral argument last week, and Katyal specifically cites oral argument to that end. As to the second point raised, it’s not clear to me that potential mootness undermines the finality of the original judgment. But language in Jefferson v. City of Tarrant, as the Solicitor General suggests, does point in that direction. And the Solicitor General rightly points out that states can still act even after certiorari:
The Court might thus conclude that once this Court has granted a writ of certiorari to review a state court’s decision on a federal question, the state court lacks authority to revisit that question in any further proceedings in the case while the case remains pending in this Court.
The parties have not raised or briefed those novel jurisdictional questions in the ongoing rehearing proceedings in the North Carolina Supreme Court. And we have not reached a definitive view on those questions here, because they would not alter our ultimate conclusion. If this Court’s grant of certiorari deprived the North Carolina Supreme Court of authority to reconsider the Elections Clause issue in the context of the ongoing rehearing proceedings, that might justify treating Harper I as the state courts’ final resolution of the federal issue. But the North Carolina Supreme Court would still retain jurisdiction to reconsider its antecedent state-law determination that the North Carolina Constitution prohibits partisan gerrymandering: This Court’s grant of a writ of certiorari under 28 U.S.C. 1257(a) cannot divest the state courts of all authority to take further action in the case—after all, the very premise of Cox is that this Court can in some circumstances grant review even though state-court proceedings will continue. And because the North Carolina Supreme Court plainly has jurisdiction to reconsider Harper I’s state-law holdings, this case no longer fits within the second Cox category because it is no longer clear that the Elections Clause issue will survive the ongoing state-court proceedings.
My sense, then, is that the weight of these analyses favors the Supreme Court hearing the case. But the Solicitor General’s brief offers a potential path for the Court to conclude that there is no jurisdiction, and the issue remains unsettled–for now.