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DOJ urges Supreme Court not to decide major redistricting case

The justices heard oral argument in December, but since had asked parties in the case whether they should issue a decision

The Supreme Court in January.
The Supreme Court in January. (Stefani Reynolds/AFP via Getty Images)

The Justice Department urged the Supreme Court on Monday not to decide a case about North Carolina’s congressional map that could give state legislatures more sway over federal elections.

The justices heard oral arguments in December and were on track to issue an opinion by the conclusion of the term at the end of June. The case hinges on the North Carolina Supreme Court’s authority to order a new congressional map for the 2022 midterm elections that was less favorable overall for Republican candidates.

But the state Supreme Court, now with a different partisan makeup of judges, decided to revisit its own decision in a related redistricting case. And that prompted the U.S. Supreme Court to ask whether that meant they should no longer decide the case before them.

In court filings Monday, the DOJ and several other parties said the rehearing means the U.S. Supreme Court should back off for now, but the map’s original challengers and state legislative leaders urged the justices to keep going on the case.

Solicitor General Elizabeth Prelogar wrote the state Supreme Court’s continued consideration of the related case makes it “difficult to conclude” that there is a final decision for the U.S. Supreme Court to review.

“But the North Carolina Supreme Court’s grant of rehearing means the court is now actively reconsidering the question whether the state constitution imposes judicially enforceable limits on partisan gerrymandering at all,” the Justice Department said.

Attorney David Thompson, on behalf of Timothy K. Moore and other Republican leaders of the state legislature, said the U.S. Supreme Court justices should decide the case now, regardless of what the state court does.

“Nothing the North Carolina Supreme Court does on rehearing can turn back time and rerun the 2022 congressional election on a map other than that written by the North Carolina court,” Thompson wrote.

The filings could precede the U.S. Supreme Court effectively dropping the case. In the case, voter advocates in the North Carolina case argued that Republicans would likely win 10 or 11 of the state’s first attempt at 14 newly drawn congressional seats — in a state former President Donald Trump won by 1 percentage point in 2020.

The legislature’s second attempt at a map did not pass a lower state court’s test, and the state Supreme Court ultimately adopted a map drawn by a special master for the 2022 elections. North Carolina voters sent seven Democrats and seven Republicans to Congress in last year’s elections.

Attorneys for the voter advocates who challenged the first map, including Common Cause represented by Neal Katyal, said in a filing Monday that the mere fact that the state court has continued proceedings does not change the final decision the Supreme Court agreed to review.

“Speculation about what the North Carolina Supreme Court may do at some future point does not affect this Court’s jurisdiction now, and it would be imprudent for this Court’s future cases to open the door to such possibilities here,” Katyal wrote.

Katyal urged the justices to decide the issue now, rather than in 2024 when an election may hang in the balance.

During U.S. Supreme Court oral arguments in December, most justices expressed skepticism about the effort by North Carolina legislators to restrict state courts’ ability to review rules for congressional elections.

The arguments in the case revolve around the “independent state legislature theory” based on the Elections Clause of the Constitution. The clause says state legislatures have the power to set the “Times, Places and Manner” of federal elections, subject to legislation from Congress.

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