Quick Summary:
This Moore v Harper case was filed at the US Supreme Court on February 25 2022, by the North Carolina Republican legislature to appeal from the decision of the North Carolina Supreme Court that denied their unfair gerrymandered voting district map that suppressed Democratic Party voters, and substituted a fair one created by the NC Trial Court.
This is known as the “Independent Legislature Theory (ISL)” in US state election law governance.
The ISL takes language from the US Constitution that would completely remove state judicial checks and balances on the voting laws promulgated by state legislatures, the Republicans want to remove state judicial oversight so they can gerrymander as they please. This would guarantee a dominant party supermajority in the state legislatures at least until the next US Census.
The bedrock free and fair elections principle of our democracy would end. The non-dominant party voter would be effectively disenfranchised. The ISL is one of several national Republican Voter Suppression initiatives. Very dangerous for our democracy, and that is why they are pushing these initiatives.
Oral argument was held on December 7, 2022, and the Court will issue its opinion in due course (Summer, 2023) as part of its October 2022 term.
We will update this case with further Court developments when they occur.
See below for more detail.
Procedural Detail:
North Carolina:
On February 4, 2022, the North Carolina Supreme Court remanded the issue back to the trial court, which produced a revised redistricting map on February 23, 2022. The NC Board of Elections then started to use the revised map for the upcoming primary on May 17, 2022, and later general election.
US Supreme Court – Application for Stay – DENIED:
In response, on February 25, 2022, the Republican legislature (Timothy K. Moore, Speaker of the NC House of Representatives et al.) filed an emergency application with the US Supreme Court for a Stay of using the NC Election Commission using the revised map for the upcoming election. See US Court application 21A455.
Application Denied
On March 7, 2022, without argument the Court DENIED the application for Stay (21A455), citing the principal in Purcell v Gonzalez, 549 US 1 (2006) (per curiam), ” … that federal courts ordinarily should not alter state election laws in the period close to an election.” and,
“In light of the Purcell principle and the particular circumstances and timing of the impending primary elections in North Carolina, it is too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections … ”
File Petition for a Writ of Certiorari
The Court concluded that it expected a separate Petition for a Writ of Certiorari to be filed so that the Court would be able to review all the issues on the merits during its upcoming term.
QUESTION PRESENTED
“Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.”
Petition for Writ of Certiorari, Moore v Harper et al., Sup. Ct. 21-1271, p. i (March 17, 2022)
US Supreme Court – Petition for Writ of Certiorari – GRANTED:
The Petition was received on March 17, 2022, and was GRANTED by the Court on June 30, 2022.
Petitioners’ Brief was filed August 29, 2022, and state Respondents’ Brief was filed October 19, 2022.
Petitioners’ Reply Brief was filed November 18, 2022.
US Supreme Court – ORAL ARGUMENT:
Oral argument was presented on December 7, 2022, to the full Supreme Court.
David H. Thompson, Washington, D. C., opened argument for the Petitioners (Thomas Moore et al).
Donald B. Verrilli, Jr., Washington, D. C., presented argument for the NC state Respondents (Harper et al).
For United States, as amicus curiae, Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D. C., argued in support of respondents.
Neal K. Katyal, Washington, D. C., presented argument in support of the private Respondents (Common Cause).
The audio of the oral argument is available on the Supreme Court website, and at C-SPAN.
Plus, the transcript is also available on the Supreme Court website.
US Supreme Court – Amicus Curiae Briefs:
This case before the Court was so important that 71 Amicus Briefs were filed!! The Clerks will be busy writing summaries!!
Below is a list of the Amici Curiae that submitted Briefs. The number of Amici were not limited as the parties had so consented on the record. In reality, this saves the Court time in not having to individually approve or deny requests to Brief by interested non-parties.
17 parties filed Amicus Curiae Briefs in support of the Petitioners.
5 parties filed Amicus Curiae Briefs that were Neutral.
49 parties filed Amicus Curiae Briefs in support of the Respondents.
[End]
