What a mess.
Rick H. links to the North Carolina Supreme Court’s decision in the partisan gerrymandering cases. The congressional piece of that is in front of the United States Supreme Court right now.
Earlier, I blogged about how “mootness” was not (yet) the problem because the North Carolina Supreme Court had not (yet) issued a decision. Now it has. Mootness becomes a problem.
But I blogged a bit after that first post about the oral argument in North Carolina. An exchange between counsel and the court suggested that the judgment on appeal before the United States Supreme Court was not being reviewed, that there was no power or intention to review it, and that it would remain on a separate track from whatever happened in the case before the North Carolina Supreme Court.
Then, today, from the North Carolina Supreme Court:
The three-judge panel’s 23 February 2022 order is vacated. Plaintiffs’ claims are dismissed with prejudice. . . .
The three-judge panel’s 23 February 2022 order addressing the Remedial Plans is vacated.
That February 23 order went to the North Carolina Supreme Court, then to the United States Supreme Court for an emergency stay. It was from that February 23 judgment that the petition for writ of certiorari was based upon.
I’m trying to wrap my mind around how the North Carolina Supreme Court can issue a decision vacating an order in a case that is currently pending before the United States Supreme Court on review.
Which isn’t to say the Supreme Court might not conclude the case is moot (on the basis of the holding of the state constitution) or simply dismiss as improvidently granted. (In either case, one or more justices may separately opine with a “statement” that resembles a merits decision.) But, separately, I’m not sure North Carolina could do what it did when it came to the February 23, 2022 order. I won’t rehash those lengthy blog posts from before except to identify the open question and yet another wrinkle facing this case.