SCOTUS Sets Date for Oral Argument in Moore v. Harper

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Brooke Lillard
lillard@redistrictingfoundation.org

SCOTUS Sets Date for Oral Argument in Moore v. Harper

Washington, D.C. — Today, the Supreme Court of the United States announced it will hear oral argument in Moore v. Harper on December 7, 2022. The National Redistricting Foundation is supporting the Harper respondents, who will submit a merits brief to the Court tomorrow. 

“This appeal is an extreme attempt to absolve our system of checks and balances in order to allow politicians to ignore the will of the people without accountability,” said Marina Jenkins, Director of Litigation and Policy for the NRF. “An embrace of the backwards notion that state courts somehow lack the fundamental power to interpret their own state laws in order to provide a check over how their state legislatures regulate federal elections would wreak havoc on our democracy. And it would contradict more than a century of precedent, including the recent Rucho decision. This case should be an easy one for the Court to decide in favor of the Harper respondents under long-established precedent, constitutional history, and the most basic principles of federalism. We look forward to presenting our argument to the Court in December.” 

North Carolina Republicans have appealed the NRF’s February victory before the North Carolina Supreme Court, bringing the case to the Supreme Court of the United States.  The appeal seeks to not only reinstate a gerrymandered congressional map, but also to give state legislatures unchecked power over federal election laws, including but not limited to congressional redistricting. The argument is based on the extreme, right-wing independent state legislature (ISL) theory, which argues that state courts cannot invalidate laws enacted by state legislatures that pertain to federal elections.

The ISL theory has received bipartisan opposition from leaders and experts in the legal field. This includes J. Michael Luttig, a former federal judge appointed by President George H.W. Bush, who wrote that a Court decision in favor of the ISL theory “would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.” In addition to that, the bipartisan Conference of Chief Justices submitted a brief to the Court stating that “The Elections Clause does not derogate from state courts’ authority to decide what state election law is, including whether it comports with state and U.S. Constitutions.” 

Moore v. Harper is an appeal of Harper v. Hall, a landmark state court case initiated by the NRF, in which the North Carolina Supreme Court determined that the congressional map enacted by Republicans in the state legislature was an unconstitutional partisan gerrymander. That landmark ruling provided the first articulation by the state’s highest court that partisan gerrymandering violates the North Carolina Constitution. As the North Carolina Supreme Court said: “Achieving partisan advantage incommensurate with a political party’s level of statewide voter support is neither a compelling nor a legitimate governmental interest.” As a result of that decision, the state trial court that had considered the case ultimately adopted a fair congressional map drawn by a bipartisan group of special masters. The court-adopted map, which will be used in the upcoming elections, allows for both parties to compete for an equal number of congressional seats, appropriately reflecting the competitive nature of the state. 

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