A practical reason for the North Carolina Supreme Court to expedite rehearing of its partisan gerrymandering decision

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.

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My New one @Slate: “Unfortunately, the Biggest Election Case of the Supreme Court Term Could Be Moot”

I have written this piece for Slate. It begins:

Will a power grab by the new Republican majority on North Carolina’s Supreme Court—ostensibly to reverse a power grab by the earlier Democratic majority on North Carolina’s Supreme Court—deprive conservatives on the United States Supreme Court of a power grab over U.S. elections? Or will it just delay an urgent election ruling to a much worse time—when it could decide the outcome of a major election?

The Supreme Court’s potential blockbuster election decision in Moore v. Harper, now expected by late June, could soon be rendered moot by an order that the North Carolina Supreme Court issued on Friday to rehear the underlying case. If Republican state justices in North Carolina moot Moore, it might simply delay an outcome on an issue that should be resolved sooner rather than later….

The good government group Common Cause and others sued over the new map, claiming it was a blatant partisan gerrymander that violated the Equal Protection Clause of the U.S. Constitution. In 2019’s Rucho v. Common Cause case, the Supreme Court in a 5-4 decision held that federal courts lacked judicially manageable standards to decide when taking partisanship into account might go so far. Chief Justice John Roberts, for the majority, said there were other ways to deal with the problem, like state courts applying state constitutional standards, Congress passing a statute governing congressional redistricting, or voter initiatives.

Undaunted, Common Cause went to the North Carolina state courts, arguing that partisan gerrymandering violates a part of the state constitution guaranteeing free and equal elections. The group was successful, with a lower court striking down the gerrymandered maps of the previous decade and forcing the 2020 election be run with new maps. It then secured a ruling from the North Carolina Supreme Court that the new congressional districts drawn for this decade violated the state constitution as well.

The politics of the state ruling was not lost on anyone who follows North Carolina politics. The North Carolina state constitution gives only its general assembly the right to draw congressional districts; the state’s Democratic governor, Roy Cooper, has no say. The state Supreme Court had a Democratic majority when it ruled that the redistricting violated the state Constitution, and Republicans attacked the ruling as a power grab. It’s worth noting that those same Republicans didn’t complain when similar state court rulings led to opposite outcomes, like when New York’s courts struck down its Democratic gerrymander of congressional districts as a partisan gerrymander under the New York Constitution, leading to a much more favorable map for Republicans in that state….

This past Friday, on a 5-2 party line vote, the North Carolina Supreme Court agreed to hear the case and rejected Common Cause’s petition to dismiss the rehearing request. Justice Anita Earls, an elected Democrat and former election law litigator, dissented: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” She called the decision “an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’”

The decision to seek rehearing is a curious one, and indicates some doubts on the part of Republicans that the U.S. Supreme Court’s decision in Moore would be a favorable one. After all, if you think there is a chance of getting a good ruling from the U.S. Supreme Court, why moot your case? And if you lose in the Supreme Court, you could always go back to the state supreme court in a new case to get the state court to reverse course.

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.

Common Cause too may have reasons to argue for the case’s mootness. After all, a bad decision in North Carolina rejecting a partisan gerrymandering claim under the state constitution would only affect that state. In contrast, an embrace of the independent state legislature doctrine by the U.S. Supreme Court would have negative effects around the country.

But there is a cost here of throwing out the Moore case at this stage, and it is not just all of the lost effort on the part of lawyers, justices, and clerks. The ISL theory is not going away. It has come up in numerous cases over the last few years, and it is going to keep arising until the Supreme Court resolves it. Given the weaknesses of the legislators’ arguments in Moore, it seems like a pretty good case in which to get some clarity.

Moreover, it is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election. It is far worse when the Supreme Court’s involvement in election cases is outcome determinative, casting new doubts on the legitimacy on the courts and the electoral process. In this case, there is no individual outcome being threatened, but rather a group of future maps. And better to have rules set and understood in advance, then figured out after the fact….

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“Inside Harvard’s misinformation meltdown”

Ben Smith and Louise Matsakis for Semafor:

Joan Donovan, Research Director of the Shorenstein Center on Media, Politics and Public Policy, is a defining and combative voice in the study of how false information travels on the internet. She became a prominent commentator after the 2016 election of Donald Trump, when many Democrats blamed misinformation on social media for his election.

Her departure is tangled up in the arguments over whether misinformation is an academic pursuit or a partisan one, and it played out inside a cautious, American institution trying to hold a shrinking political center. “The Kennedy School’s decision to force out Joan Donovan and her team raises real questions about the school’s willingness to support critical and controversial work focused on democracy and technology,” said Garrett Graff, director of cyber initiatives at the Aspen Institute, which also invested in misinformation research.

Donovan’s public profile dominated the Shorenstein Center’s public image. She wrote opinion pieces for places like The New York Times, Wired, and The Atlantic, was regularly quoted by journalists at many outlets, and appeared on CNN and MSNBC. In October 2020, the House Intelligence Committee  invited her to testify on misinformation and conspiracy theories.

But behind the scenes, Donovan was also a source of discomfort for the Kennedy School, which has battled a kind of second-class status at Harvard as an institution run by journalists and politicians within a university dominated by superstar academics….

Donovan clashed with powerful social media platforms, which are a source of both data and funding to many other scholars. That conflict became clear during a private, virtual meeting of the Kennedy School’s “Dean’s Council” on October 29, 2021, where Donovan presented to the school’s top supporters on “Curbing the Damage Caused by Misinformation.”

One of the council’s members was Eliot Schrage, the former head of policy at Facebook. He aggressively challenged the premise of Donovan’s work, according to two people present. He delivered Facebook’s perspective that the platform should not be the arbiter of truth and falsity, and that journalists and academics often tag politics they don’t like as “misinformation.” (Donovan declined to comment on her status at the Kennedy School. Schrage declined to comment for this story.)

Donovan’s supporters believe her involvement with an archive of documents leaked by former Facebook whistleblower Francis Haugen led to her dismissal, though there’s no clear evidence directly linking the moves. Facebook’s then-COO Sheryl Sandberg gave more than $5 million to the Kennedy School between 2012 and 2018, according to a school report.

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“Election skeptics slow to get sweeping changes in GOP states”

AP:

Republicans in some heavily conservative states won their campaigns for secretary of state last year after claiming they would make sweeping changes aimed at keeping fraud out of elections.

So far, their efforts to make good on their promises are mixed, in some cases because their rhetoric has bumped up against skepticism from members of their own party.

Voters in politically pivotal swing states such as Arizona, Michigan and Nevada rejected candidates seeking to oversee elections who had echoed former President Donald Trump’s false claims about the 2020 presidential election. But newly elected secretaries of state in Alabama, Indiana and Wyoming who had questioned the legitimacy of that election won easily in those Republican-dominated states.

They are now facing the task of backing up their campaign pledges in states where Republicans have already set strict election laws.

In Indiana, Secretary of State Diego Morales has been relatively quiet. He has not been making the rounds at the Statehouse trying to persuade lawmakers to embrace the wide-ranging tightening of voting rules he promoted as a candidate.

After defeating the incumbent secretary of state for the Republican nomination last summer, Morales dialed back his description of Joe Biden’s 2020 presidential election as a “scam” and his calls for tighter voting laws. That push included cutting Indiana’s 28-day early voting period in half and requiring new voters to prove their U.S. citizenship when registering.

No bills for such steps were introduced for this year’s legislative session. Morales, who was an aide to Mike Pence when the former vice president was governor, also did not seek any money in his budget request to lawmakers for creating an “election task force,” which he had discussed as a candidate, that would investigate voting “shenanigans” around the state.

A concept backed by Morales for requiring voters to include a copy of their driver’s license with a mail-in ballot application is being sponsored by a Republican lawmaker, but he said he wasn’t working with Morales on the proposal.

Morales’ office has declined interview requests from The Associated Press since he took office Jan. 1. Kegan Prentice, the office’s legislative director, said Morales was “currently focused on the ongoing transition.”

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“As G.O.P. Rails Against Federal Spending, Its Appetite for Earmarks Grows”

NYT:

Even as Republicans, newly empowered after taking control of the House, call for deep government spending cuts and accuse Democrats of profligacy with taxpayer dollars, a growing number of them have joined Democrats in helping themselves to larger amounts of cash for their states and districts in the form of earmarks — now rebranded as “community project funding” — that allow lawmakers to direct federal money to pet projects.

A review by The New York Times of the nearly $16 billion in earmarks included in the $1.7 trillion spending law enacted in December — more than 7,200 projects in all — revealed that earmarks requested by members of both parties skyrocketed over the last year. And while Democrats secured a greater amount of spending on pet projects overall than Republicans did, the increase in G.O.P. earmarks since last spring was larger.

Compared to spending legislation in March, the number of earmarks in the December bill rose by more than 2,200, costing $7 billion more, with Democrats outspending Republicans by $2.3 billion. Republican members secured 85 percent more in spending for pet projects in the latest funding package than in previous one, whereas Democrats’ increase was 70 percent.

The totals still pale in comparison to the heyday of earmarking — lawmakers claimed $32 billion worth in the 2010 fiscal year, before the prohibition went into effect — but the uptick reflects a bipartisan return in enthusiasm for the practice.

Republican lawmakers claimed eight of the 10 most expensive earmarks, with Representative Brian Mast of Florida, securing the largest: $447 million for an ecosystem restoration project in South Florida.

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“Kari Lake, Still Refusing to Accept Defeat in One Race, Teases Arizona Senate Run”

NYT:

Kari Lake, the fiery former news anchor who narrowly lost a race for governor of Arizona last year, said in an interview that she is considering a Republican campaign for the U.S. Senate in Arizona next year.

She has also scheduled campaign-style events this month in Iowa — home to her party’s first presidential nominating contest — that typically signal White House ambitions.

Additionally, she is still contesting her November defeat in the Arizona governor’s race, despite her claims of misconduct being rejected in court. She has continued raising money to help finance legal bills related to her court challenges, and has also given several paid speeches, but declined to say for whom.

Ms. Lake’s maneuvering in recent months has signaled that she’s eager to build out her fledgling political résumé following a midlife career shift.

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Breaking: North Carolina Supreme Court Grants Rehearing in Case Striking Down Congressional Districts as a Partisan Gerrymander, Potentially Mooting U.S. Supreme Court’s Independent State Legislature Case, Moore v. Harper

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… Continue reading