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Biden administration tells high court North Carolina redistricting spat is moot

The consequential election case looks dead in the water to almost everyone involved.

WASHINGTON (CN) — A redistricting battle that could decide the future of checks and balances on elections is now moot, the Biden administration told the Supreme Court Thursday. 

U.S. Solicitor General Elizabeth Prelogar’s assessment of the court’s ability to decide the major election case comes after North Carolina’s redistricting battle was flipped on its head last month. The state's top court reversed a prior decision on partisan gerrymandering after Democrats lost their majority on the court and Republicans decided to rehear a challenge to updated congressional maps. 

“A decision of this court determining whether and under what circumstances the elections clause might limit state courts’ authority to review state election legislation for compliance with state constitutions could have no effect on the resolution of those already-dismissed claims,” U.S. Solicitor General Elizabeth Prelogar wrote. “The court should therefore dismiss the writ of certiorari because the question presented ‘is now moot in [t]his case.’” 

Not only did the case bring the justices important questions surrounding North Carolina’s congressional maps, but arguments in the dispute threatened to legitimize a controversial theory with the potential to upend checks and balances around elections. The independent state legislature theory argues that state lawmakers have absolute power over federal elections. This power, they claim, is preserved in the Constitution’s elections clause that says elections are to “be prescribed in each state by the legislature thereof.” 

Opponents of this theory say the clause’s language refers to the lawmaking process as a whole, not solely the general assembly. If only understood to refer to the general assembly, lawmakers' rules around elections would be able to avoid judicial review from state courts. 

The dispute began after the 2020 census when North Carolina completed a redraw of its congressional maps. A three-judge panel said lawmakers’ proposed new maps reflected partisan gerrymandering but that they were unable to provide a remedy under the state’s constitution. Under a Democratic-leaning majority, the North Carolina Supreme Court then stepped in and reversed, finding the maps unconstitutional. 

After the court revised the maps itself, the Republican-controlled North Carolina General Assembly asked the justices to provide emergency relief. Declining to intervene immediately, the Supreme Court agreed to hear the case during its 2022 term.  

During oral arguments in December, the conservative supermajority appeared fractured on how the case should move forward. 

Only months later, the North Carolina Supreme Court’s new Republican majority would agree to rehear the redistricting battle. Prior to the state high court ruling, the Biden administration was unsure how the justices’ jurisdiction would be impacted but suggested the case might be out of their hands. 

North Carolina’s Supreme Court then issued its ruling reversing the Democratic majority’s ruling. With a decision from the state high court in hand, the justices asked for additional briefing a second time to assess their jurisdiction in the case. 

The Biden administration argues the case is moot because the court’s resolution of the question before it will not impact the nature of this case. There was also an argument made that the Supreme Court could maintain jurisdiction in the suit because the decision from the state high court and its subsequent denial of stay impacted the 2022 congressional election. 

“But because the 2022 congressional election has passed and the court-drawn map will not be used again this court can no longer redress that injury,” Prelogar wrote. “And in light of the North Carolina Supreme Court’s decision on rehearing, there is no reason to think that Harper I and the subsequent denial of a stay will have any effect on the rules governing North Carolina’s congressional elections going forward."

Voting rights advocates in the case have argued the court could still address the independent state legislature issues presented in the case. 

“Petitioners’ independent state legislature theory calls into question hundreds of state constitutional provisions and as many (or more) election laws,” Neal Katyal, an attorney with Hogan Lovells representing Common Cause, wrote. “The dispute over that theory must be resolved in time to prepare maps, ballots, and election rules well in advance of the 2024 elections. It is therefore exceptionally important that the court address the question presented as quickly as possible.” 

However, the Biden administration argues these questions do not meet the threshold for issues that are capable of repetition yet evade review. 

“The federal elections clause issue in this case has become moot not because of the duration of the challenged action — decennial districting — but rather because of the North Carolina Supreme Court’s unusual grant of rehearing,” Prelogar wrote. 

The voting rights group was the only party in the case that urged the justices to move forward with a ruling in the case. 

Follow @KelseyReichmann
Categories / Appeals, Government, Politics

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