WASHINGTON (CN) — The Biden administration pushed the U.S. Supreme Court on Monday to throw out a high-stakes restricting battle that will face a competing review from North Carolina's highest judicial body.
While unable to point to any precedent for the justices’ current predicament, U.S. Solicitor General Elizabeth Prelogar said she erred on the side of the state court winning the jurisdiction squabble.
“The present posture of this case is unusual, and we are not aware of any precedent addressing the application of Section 1257(a) and Cox in circumstances like these,” Prelogar wrote. “In the view of the United States, the North Carolina Supreme Court’s grant of rehearing makes it difficult to conclude that the state court has entered a ‘[f ]inal judgment’ reviewable by this Court under 28 U.S.C. 1257(a).”
North Carolina lawmakers have joined the Biden administration in this view, but the voting rights group involved in the case disagreed.
“This Court should not wait until this question comes before it on an emergency basis in the lead up to the 2024 election cycle,” wrote Neal Kumar Katyal, an attorney with Hogan Lovells representing Common Cause. “The question presented is fully briefed, thoroughly argued, and ripe for decision. This Court is the only forum that can definitively resolve it and provide guidance to state legislatures and state courts across the country.”
The redistricting battle from North Carolina lawmakers involves a controversial theory that could divest judicial checks on elections. According to the independent state legislature theory, the Constitution’s elections clause gives the general assembly alone supremacy over federal elections. This cuts against the normal operation of lawmaking that includes judicial review by state courts.
Election experts have sounded the alarm against the justices’ endorsement of the theory, arguing it would usurp checks and balances in elections.
Following the 2020 census, North Carolina conducted a redraw of its congressional maps. A three-judge panel declined to throw the maps out even while finding them to have been gerrymandered. The state Supreme Court then found the maps unconstitutional, reversing the panel’s ruling.
Lawmakers failed to create maps meeting the court’s approval so the court provided the assembly with revised maps. When the case then landed on the U.S. Supreme Court’s emergency docket, the justices declined to intervene but later agreed to hear arguments in the case.
After a full briefing on the case, the justices heard arguments in December. The blockbuster ruling was thrown a curveball in February, however, when the North Carolina high court agreed to rehear the case. Democrats held the majority when the state Supreme Court shot down lawmakers’ redrawn maps. With Republicans now in charge, however, assembly leaders asked the new majority to review the case.
The move led the justices to request additional briefing on their jurisdiction to decide the issue.
The Biden administration leans on the case’s status at the time the justices decided to grant review. The Supreme Court is supposed to review cases only once the lower courts have given a final judgment. The judgment was final in this case when the U.S. Supreme Court heard arguments, but now that is uncertain.
“Following the North Carolina Supreme Court’s grant of rehearing, however, it is not clear that the court’s February 2022 rulings represent ‘the State’s last word on’ the federal Elections Clause issue in this litigation,” Prelogar wrote.
Prelogar told the justices that the case before them could be moot following the state high court’s ruling.
“If the North Carolina Supreme Court agrees with petitioners and rejects Harper I’s holding that the North Carolina Constitution prohibits partisan gerrymandering, that development would effectively moot the Elections Clause issue,” Prelogar wrote.
The voting rights group in the case argue that the state high court’s time to seek rehearing expired long ago.
“Harper I is currently the binding precedent of the North Carolina Supreme Court, and that decision is not subject to withdrawal,” Katyal wrote. “The North Carolina Supreme Court’s February 3, 2023 rehearing order in Harper II does not change that.”
Regardless of how the state high court rules, the group says the question of whether state courts have a role in reviewing congressional redistricting maps falls under the jurisdiction of the justices.
“The Court should, if at all possible, decide this question now, rather than on an emergency basis during the 2024 election cycle,” Katyal wrote. “All of that is why this Court should not dismiss this case at this point based on speculative possibilities that may not ever materialize.”
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