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DOJ urges Supreme Court not to decide case on federal elections

The justices heard oral arguments in December, but since then North Carolina Supreme Court action might have changed things

The Supreme Court building is seen at sunset in Washington.
The Supreme Court building is seen at sunset in Washington. (Bill Clark/CQ Roll Call file photo)

The Justice Department and most of the parties in a dispute about North Carolina congressional maps urged the Supreme Court on Thursday not to decide the case, arguing that a ruling from the state’s high court means there is no longer a reason for the justices to weigh in.

The Supreme Court heard oral arguments in December in the case, which could have far-reaching implications for state courts’ ability to weigh in on federal election rules. But last month, the North Carolina Supreme Court reversed a related case.

The Justice Department, in a brief filed Thursday, said that state court action means the U.S. Supreme Court should find the case “moot,” or out of its jurisdiction.

“The North Carolina Supreme Court’s April 28 decision means that the federal Elections Clause question on which this Court granted review no longer has any live significance in this case,” the Justice Department brief states.

The briefs from DOJ and other parties could precede the U.S. Supreme Court effectively dropping the case. The Supreme Court has twice asked for additional briefing in the case since it was argued in December, rare for any case at the court.

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.

Leaders in North Carolina’s Republican-controlled legislature argued the state court exceeded its authority and challenged the decision at the Supreme Court.

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.

Following oral arguments at the court in December, and after the state Supreme Court’s partisan makeup changed in last year’s election, the state court granted rehearing in a related case. Last month the court reversed itself, which wiped out the precedent the U.S. Supreme Court case was based on.

The state can now use its original congressional map — which is just fine with the state’s legislative leaders. In a brief filed Thursday, Timothy Moore, speaker of the Republican-controlled state House, argued the Supreme Court no longer has a live case.

“Given this reality, the question that this case previously presented — whether the Elections Clause permits state courts to review redistricting maps for compliance with the state constitution — has become purely theoretical,” Moore’s brief said.

Attorneys for the original challengers to the map, North Carolina League of Conservation Voters and the group of voters led by Rebecca Harper, largely agreed. However, if the Supreme Court still wished to weigh in, they asked for a favorable ruling.

“While the Harper Respondents believe there is no non-frivolous basis for jurisdiction here, if this Court disagrees it should reject Petitioners’ independent state legislature theory in its entirety,” the voters’ brief said.

Only one party in the case, Common Cause, argued for the Supreme Court to decide the issue — and rule against North Carolina. In a brief filed Thursday, the group argued that the mere fact that North Carolina’s high court ruled in the case means the U.S. Supreme Court can still decide it.

“Petitioners’ core contention before this Court is that the Elections Clause prohibits state constitutions—and state courts—from imposing limits on the authority of state legislatures over congressional redistricting. But the North Carolina Supreme Court has now twice rejected that contention,” the brief said.

The court will likely decide what to do with the case before the end of its term at the end of June.

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