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''Moore v. Harper'' is an ongoing
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case related to the independent state legislature theory (ISL), arising from the redistricting of
North Carolina North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and So ...
's districts by the North Carolina legislature following the 2020 census, which the state courts found to be too artificial and partisan, and an extreme case of gerrymandering in favor of the
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.


Background

North Carolina's congressional and legislative districts have been subject to protracted litigation over the 2010s and 2020s in both federal and state courts. In the 2019 decision in ''
Rucho v. Common Cause ''Rucho v. Common Cause'', No. 18-422, 588 U.S. ___ (2019), is a landmark case of the United States Supreme Court concerning partisan gerrymandering. The Court ruled that while partisan gerrymandering may be "incompatible with democratic principl ...
'', which arose out of district maps in North Carolina, the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that partisan gerrymandering claims are beyond the reach of federal courts, and that asking for judicial intervention would represent an expansion of powers. Courts can still evaluate redistricting maps for racial gerrymandering under the
Voting Rights Act The suffrage, Voting Rights Act of 1965 is a landmark piece of Federal government of the United States, federal legislation in the United States that prohibits racial discrimination in voting. It was signed into law by President of the United ...
. In 2017, the General Assembly modified state law to direct that the speaker of the North Carolina House of Representatives and the president pro tempore of the North Carolina Senate be able to intervene in any litigation over the constitutionality of state law. Following the
2020 United States census The United States census of 2020 was the twenty-fourth decennial United States census. Census Day, the reference day used for the census, was April 1, 2020. Other than a pilot study during the 2000 census, this was the first U.S. census to of ...
, the state gained an additional seat in the
U.S. House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
and required a redistricting of the state. The census also showed that the state demographics were about 60% Caucasian and the remaining from other racial backgrounds, with African Americans and Hispanics making up the largest percentages. The Republican-controlled legislature started drafting new maps that they claimed to be in line with a previous
North Carolina Supreme Court The Supreme Court of the State of North Carolina is the state of North Carolina's highest appellate court. Until the creation of the North Carolina Court of Appeals in the 1960s, it was the state's only appellate court. The Supreme Court consists ...
ruling from 2019 that required the maps to be compliant with the Voting Rights Act to avoid racial gerrymandering, along with an open and transparent process to the voters of the state. State Senator
Dan Blue Daniel Terry Blue Jr. (born April 18, 1949) is an American politician and attorney serving as a member of the North Carolina Senate, representing the state's 14th Senate district, and is the Senate minority leader. Early life and education Bl ...
, the state senate's Democratic leader, stated that the resulting maps gave an advantage to the Republican Party in ten seats to the Democrats in four. Multiple lawsuits were filed against the leaders of the North Carolina legislature in November 2021 on claims that the maps were both racially and partisan gerrymandered. Wake County Superior Court upheld the maps in January 2022. On the partisan gerrymandering, the court stated that in the lines of ''Rucho'', "Were we as a court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government." The court also said the plaintiffs had not shown sufficient evidence that the new maps were racially gerrymandered. On appeal, the North Carolina Supreme Court held the maps unconstitutional in a 4–3 decision given in February 2022. Under remand to the superior court, the General Assembly attempted to draw up new maps to comply with the Supreme Court decision, but these failed to satisfy the judges on the superior court. A special master team of outside experts were assigned to create a new map, which was accepted by the superior court on February 24, 2022. On February 25, 2022, the General Assembly sought a stay for the newly drawn maps pending appeal by the U.S. Supreme Court, to allow for review of the
Elections Clause Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Sena ...
issue. It was denied on March 7, 2022, over the dissent of Justice
Samuel Alito Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has served ...
, who was joined by Justices
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
and
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
. Justice
Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since Oc ...
concurred, asserting the ''Purcell'' principle counseled against intervention so soon before the election. Throughout the litigation, the General Assembly argued their case based on the independent state legislature theory (ISL). This theory is based on language from the Elections Clause in the
Article One of the U.S. Constitution Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Sena ...
, stating: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The theory is based on the reading that Article I implies that only state legislatures may make any decisions related to election law and prevent any actions from courts or the executive branch from challenging it. This would allow the state legislature to fully control redistricting as well as other voting laws. While the Supreme Court and other courts had already rejected this concept, including as late as '' Smiley v. Holm'' (1932), the theory gained more traction with Republicans and conservatives since ''
Bush v. Gore ''Bush v. Gore'', 531 U.S. 98 (2000), was a landmark decision of the United States Supreme Court on December 12, 2000, that settled a recount dispute in Florida's 2000 presidential election between George W. Bush and Al Gore. On December 8, th ...
'' (2000), thus making it a potentially landmark case according to legal experts. ISL proponents also pointed to ''
Bush v. Palm Beach County Canvassing Board ''Bush v. Palm Beach County Canvassing Board'', 531 U.S. 70 (2000), was a Supreme Court of the United States, United States Supreme Court decision involving Florida voters during the 2000 United States presidential election, 2000 presidential elec ...
'' (2000) in support of their arguments.


Supreme Court

The North Carolina speaker of the House, president pro tempore of the Senate, and other members of the General Assembly subsequently filed a petition for a writ of certiorari. The Court granted review on June 30, 2022, to be heard in the October 2022–23 term. Oral arguments were held December 7, 2022. Court observers stated that it appeared that the ISL theory argued by
David H. Thompson David H. Thompson is an American trial Attorneys in the United States, attorney and the managing partner of the law firm Cooper & Kirk, PLLC, a litigation Boutique law firm, boutique. Thompson has litigated numerous high-profile cases, includi ...
was rejected by the three liberal justices (Sotomayor, Kagan, and Jackson) alongside Chief Justice Roberts and Justices Kavanaugh and Barrett. While Roberts looked to overturn the North Carolina Court decision, he sought to do it in a way that did not embrace ISL. Justices Alito, Thomas, and Gorsuch appeared to still embrace concepts of the ISL as to rule in favor of the state legislature. The Court had agreed to hear the case in June 2022 at the request of North Carolina legislators after the state's Supreme Court, then with a 4-3 Democratic majority, set aside the new redistricting maps. In the November 2022 elections, Republicans gained a 5-2 majority on the state court, and in February 2023 they agreed to reconsider the prior court's ruling. In March 2023, the United States Supreme Court asked the involved parties to submit 10-page briefs within days to assess whether the state court's decision to rehear the case rendered the high court's consideration of the case moot, such that ''Moore'' might be dismissed. Parties on both sides of the case wrote in their briefs that the Court should dismiss the case given the state's new review.


Impact

''Moore v. Harper'' has been described as one of the most high-profile cases the Supreme Court has taken up in recent years; former federal judge Michael Luttig called it the "single most important case on American democracy — and for American democracy — in the nation's history". The case is expected to have a significant impact on future federal elections in the U.S. should the court support ISL, and affect efforts to make gerrymandering illegal or remove restrictions on voting. Three of the current justices — Alito, Gorsuch, and Thomas — had stated in the dissent to the Court's March 2022 order denial that they believed the state argued correctly on employing ISL. Should the court rule in the state's favor, the ruling would likely impact the
2024 United States elections The 2024 United States elections are scheduled to be held, in large part, on Tuesday, November 5, 2024. During this presidential election year, the president of the United States and vice president will be elected. In addition, all 435 seats in t ...
.


See also

*
Democratic backsliding in the United States Democratic backsliding has been ongoing in the United States since the late 2010s. The V-Dem Institute's electoral democracy index score for the United States peaked in 2015 and declined sharply after 2016, for which year it was also downgraded ...
* ''
Arizona State Legislature v. Arizona Independent Redistricting Commission ''Arizona State Legislature v. Arizona Independent Redistricting Commission'', 576 U.S. 787 (2015), was a United States Supreme Court case where the Court upheld the right of Arizona voters to remove the authority to draw election districts from ...
'' (2015) * ''
Texas v. Pennsylvania ''Texas v. Pennsylvania'', 592 U.S. ___ (2020), was a lawsuit filed at the United States Supreme Court contesting the administration of the 2020 presidential election in certain states, in which Joe Biden defeated incumbent Donald Trump. Fil ...
'' (2020)


References


Further reading

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External links

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Audio of oral argument, December 7, 2022

Transcript of oral argument, December 7, 2022
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