N.C. legislative leaders submit final brief in U.S. Supreme Court redistricting case | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    North Carolina's Republican legislative leaders filed on Friday their final written arguments before the Moore v. Harper redistricting case heads to oral arguments at the U.S. Supreme Court.

    Justices will decide whether the state's courts had the power to reject the legislature's congressional election map. State judges drew their own map for 2022 congressional races.

    Oral arguments in the case are scheduled for Dec. 7.

    "The Constitution compels the 'Legislature' of each State to prescribe '[t]he Times, Places and Manner of Holding Elections for Senators and Representatives.' A State cannot impose substantive limits on the exercise of this federal function any more than Congress can reallocate executive power to itself," lawmakers' lawyers wrote.

    The General Assembly's critics are looking at the wrong constitution, according to lawmakers' brief.

    "Because the North Carolina legislature's authority to regulate federal elections is commissioned by the federal Constitution, it is no more subject to the limits in North Carolina's constitution than to those in California's," lawmakers' lawyers wrote. "State legislatures are limited by constitutional restraints that apply (those in the federal Constitution), and they cannot 'violate' constitutional restraints that do not apply (those in a state constitution)."

    "When a court invalidates a legislature's federal election regulations on state-constitutional grounds, it does something other than 'say what the law is,'" the brief added. "It circumscribes the power assigned by the Elections Clause to state legislatures on the basis of inapplicable law. That circumscription violates the Elections Clause and is void under the Supremacy Clause."

    The Moore v. Harper case has attracted national attention. Critics have linked N.C. legislators' arguments to an Independent State Legislature doctrine. Some have suggested that a victory for legislative leaders in this case could pave the way for state legislators to take other controversial steps - like replacing presidential electors when they don't like an election's outcome.

    Legislators' brief offers the nation's highest court a way to address the limited facts of North Carolina's case. Lawmakers argue that the state Supreme Court relied on vague state constitutional language to establish a new ban on partisan gerrymandering.

    "If the Court were concerned about the implications of fully embracing our position, it could decide this case on narrower, alternative grounds," lawmakers' lawyers wrote. "Even if some substantive state-constitutional restrictions could be validly enforced, the Elections Clause does not allow state courts to enforce judicially undiscoverable and unmanageable state-constitutional standards that 'ask the courts to make their own political judgment about how much representation particular political parties deserve.' For that task is 'legislation' by definition, and it cannot lie within the province of the courts on any plausible interpretation of the Clause."

    N.C. lawmakers offered the Supreme Court a third option. "[I]f (and only if) the Court rejects our first two alternatives, it could hold that the Elections Clause does not allow state courts to draw their own maps. That at least would prevent states from seizing redistricting entirely from the legislative process."

    "Our theory of the case is a simple one: while state law governs the process by which state legislatures exercise the power assigned them by the Elections Clause, only federal law can limit the substance of the election regulations they pass. That is a distinction grounded in text, history, and precedent," according to lawmakers' brief.

    While the U.S. Supreme Court prepares to hear oral arguments in Moore v. Harper next month, observers await the state Supreme Court's ruling in Harper v. Hall. In that case, Democrats and their left-of-center ideological allies challenge the state's legislative election maps. That case also could produce a ruling about the court-drawn congressional map.

    Regardless of the outcomes of the state and federal cases, legislators expect to redraw North Carolina's congressional map next year. This month's election produced a 7-7 split between the two major parties within North Carolina's U.S. House delegation.