By Mitch Kokai
Two of the three groups of plaintiffs in North Carolina’s redistricting fight object to the latest request from N.C. legislative leaders. Those leaders have asked the state Supreme Court to dismiss lawmakers’ appeal of a court-imposed 2022 congressional election map.
Dismissal would not end the case. Challenges of maps for state House and Senate races would proceed at the state’s highest court. Plus the congressional map is part of a separate case, Moore v. Harper, heading to the U.S. Supreme Court.
Still, one group dubbed the Harper plaintiffs and a second group led by the N.C. League of Conservation Voters want the state Supreme Court to consider the congressional map as well. The two groups filed a joint document at the N.C. Supreme Court. It asks justices to deny lawmakers’ request.
“Legislative Defendants’ motion is a transparent effort to prevent this Court from addressing important questions — questions that Legislative Defendants have erroneously told the U.S. Supreme Court are unresolved — about the meaning of North Carolina statutes that authorize North Carolina courts to conduct state constitutional review of congressional-districting plans,” according to the plaintiffs’ court filing. “Their reason for doing so is clear: Legislative Defendants do not want this Court to confirm in this appeal that those statutes mean what they say, i.e., that the North Carolina legislature has authorized North Carolina courts to review the constitutionality of congressional redistricting maps and, if the legislature fails to enact a lawful remedy after being given the chance, to adopt their own maps.”
“Such a holding would unravel Legislative Defendants’ (baseless) arguments in the U.S. Supreme Court that this Court’s decision invalidating the enacted 2021 congressional plan under the North Carolina Constitution usurped the power of ‘the Legislature’ in violation of the Elections Clause of the U.S. Constitution.”
“Legislative Defendants instead wish to preserve the ability to ask the U.S. Supreme Court in Moore v. Harper to construe those state statutes as something other than a clear legislative authorization,” plaintiffs argued.
“Legislative Defendants’ attempted dismissal is pure gamesmanship,” plaintiffs added. “While they claim to seek dismissal because ‘2022 is the only election to which the remedial Congressional Map will apply,’ that has been true during the entire five-month period when the Legislative Defendants pursued this appeal and argued for the adoption of their own proposed remedial map.”
“What changed was only the U.S. Supreme Court’s grant of certiorari and the Legislative Defendants’ realization that this appeal could prevent their efforts to mischaracterize North Carolina law in the U.S. Supreme Court,” according to Tuesday’s filing.
The U.S. Supreme Court issues a “writ of certiorari” when it agrees to hear a case.
In a July 13 filing, legislators’ lawyers defended their proposed dismissal.
“Based on the filings to date in this [N.C. Supreme] Court, it is clear that all parties agree that nothing in the outcome of this appeal will disturb the maps currently in place for the 2022 election cycle,” wrote Phillip Strach, legislative leaders’ attorney. “That is because the remedial Congressional Map ordered by the trial court is only applicable to the 2022 election, and that map will apply to the 2022 election regardless of the outcome of the appeal in this Court.”
“Because the remedial Congressional Map ordered by the trial court will apply in 2022, and because 2022 is the only election to which the remedial Congressional Map will apply, in an effort to avoid further cost and confusion to the taxpayers and voters of North Carolina, Legislative Defendants seek to dismiss the entirety of their portion of this cross-appeal,” Strach added.
Regardless of the congressional map, the state’s highest court is scheduled to hear plaintiffs’ complaints about maps adopted for North Carolina’s 120 state House districts and 50 state Senate seats.
If the state Supreme Court accepts legislative leaders’ proposal, the dispute over a court-imposed congressional map would shift entirely to the U.S. Supreme Court in Washington, D.C.
Justices will decide “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,’ 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,” according to the petition N.C. legislative leaders submitted to the nation’s highest court.
No date has been set for oral arguments in Washington. A decision in the Moore case is likely to fall close to the end of the U.S. Supreme Court’s next term in June 2023.