On December 7, the U.S. Supreme Court will hear Moore v Harper, 21-1271. The case concerns the North Carolina redistricting process in 2021. The Republican-majority legislature had drawn new U.S. House districts, which everyone agreed amounted to a partisan gerrymander that strongly favored the Republican Party. Then the North Carolina Supreme Court had ruled that the State Constitution prohibits extreme partisan gerrymandering, and had struck down the districts, and had caused new districts, drawn by outside neutral experts, to go into effect. The North Carolina Supreme Court relied on the part of the State Constitution that says elections shall be “free and equal.”
The leaders of the majority party in the legislature then asked the U.S. Supreme Court to hear their appeal of what the State Supreme Court had done.
They argue that Article One of the U.S. Constitution does not allow state courts to have any voice in decisions over congressional redistricting. Article One, section four, the “Elections Clause”, says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of Chusing Senators.” The Constitution, in Article II, has a somewhat similar provision giving power over the method of the selection of presidential electors to state legislatures.
The importance of this case is illustrated by the massive number of amici curiae briefs that have been filed. Sixteen are on the side of the North Carolina Republican leaders, and 49 are on the side of the North Carolina Supreme Court. Also there are five briefs that say they are not on either side, but if one reads them, they are on the side of the North Carolina Supreme Court.
The briefs that say they are not on either side are from the Wisconsin Voter Alliance, the Secretary of State of Missouri (Republican John R. Ashcroft), the Conference of State Chief Justices, a group of Republican voters in New York state, and the Arizona Independent Redistricting Commission.
The Wisconsin Voter Alliance says that if the U.S. Supreme Court rules that “legislature” means just the state legislature, then parallel language in Article Two (concerning presidential elections) must mean that the Electoral Vote Act of 1887 is unconstitutional. That Act gives Congress the power to throw out illegitimate electoral votes. The Voter Alliance says that tramples on the rights of state legislatures.
The brief of Missouri Secretary of State John Ashcroft says that the word “manner” in Article One does not cover redistricting. He says it only covers things like whether voting shall be by secret ballot or not, where the polling places should be located, and guarantees that states will hold congressional elections.
The brief of the Conference of Chief Justices says that surely, if the legislature itself authorizes judicial review of its redistricting decisions, then “legislature” includes state judicial review.
The brief from a group of Republican voters in New York state points out that this year, the New York highest state court invalidated the New York congressional districts as an unconstitutional partisan gerrymander. This brief seems to be a signal to the U.S. Supreme Court that the issues cuts both ways, and sometimes state court invalidation of gerrymandering helps Republicans.
The brief of the Arizona Independent Redistricting Commission says that “legislature” must mean “a state’s legislative power”, because otherwise nonpartisan redistricting commissions established by initiative would be unconstitutional.
Among the amici briefs on one side or the other, there is one signed by 21 states plus the District of Columbia that is on the side of the North Carolina Supreme Court, and there is another signed by 13 states that is on the side of the Republican legislative leaders.
Anyone can read any of these briefs by visiting the U.S. Supreme Court web page. Choose “case documents”. Then choose “docket search” for case 21-1271. The U.S. Supreme Court web page is excellent.
