A major case before the Supreme Court that could drastically affect future elections was thrown a curve ball this month when a state Supreme Court decided to take up the underlying case again.
The Moore v. Harper case is a Republican-led challenge to a North Carolina Supreme Court ruling in Harper v. Hall, which resulted in striking GOP-drawn legislative maps that were ruled as an unconstitutional gerrymander by the state’s Democratic-majority high court last year.
SUPREME COURT LOSS COULD CRIPPLE MARC ELIAS’S CRUSADE AGAINST GOP ELECTION LAWS
After the midterm elections rendered a 5-2 Republican-appointed majority of justices on the state Supreme Court, justices decided on Friday to rehear two election law-related challenges that were previously decided when a Democratic majority sat on the court, one of which was argued before the highest court in the nation on Dec. 7. Now, court watchers can only speculate on whether the justices in Washington, D.C., might find a consequential legal challenge turned moot.
The only good thing about this situation is it may cause the Supreme Court to dismiss the Independent State Legislature case (Moore v Harper). That would be the right thing for them to do and would be good for democracy.https://t.co/RDnpHERFAD
— Marc E. Elias (@marceelias) February 6, 2023
“The only good thing about this situation is it may cause the Supreme Court to dismiss the Independent State Legislature case (Moore v Harper). That would be the right thing for them to do and would be good for democracy,” Marc Elias, a lifelong Democratic election attorney who served as the Hillary Clinton campaign’s general counsel, tweeted Monday.
The state Supreme Court’s decision to rehear two cases is exceedingly rare, let alone that the two cases scheduled for rehearing are less than a year old.
Democratic election advocates ranted for months in the buildup to the Dec. 7 argument date that a so-called fringe conservative legal doctrine, known as the Independent State Legislature theory (ISL), could be adopted by the 6-3 conservative supermajority on the Supreme Court and might issue a broad ruling that could remove oversight from state courts over federal election rules, which could in effect translate to separate rules for federal and state elections.
Following oral arguments, University of Iowa College of Law professor Derek Muller told the Washington Examiner that despite the nearly three-hour discussion, it was “unclear what the Supreme Court will do.” But Muller added, “If the legislature wins, it will be a narrow set of circumstances when state courts cannot independently check a state legislature in federal elections.”
The reaction to the justices’ deliberations, which did not appear to enthusiastically embrace the ISL doctrine, left many legal experts speculating that the high court might deliver a narrow opinion favoring the GOP-drawn maps without adjusting the authority state courts have over election disputes.
Jason Snead, executive director of Honest Elections Project, which backed the North Carolina GOP push for the justices to endorse the ISL doctrine, said there is a chance the rehearing schedule could affect the Supreme Court’s ultimate decision, which is expected before the end of June.
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“Certainly filing a rehearing means that there’s an active question here. This isn’t an idle one,” according to Snead, who previously said a win for North Carolina GOP lawmakers in the Moore case could inhibit the efforts of attorneys like Elias, who was a respondent in a 2021 Supreme Court case that resulted in the weakening of the Voting Rights Act.
The separate case set for rehearing is Holmes v. Harper, a challenge to the state high court blocking a 2018 law that provides a short list of qualifying photo IDs acceptable for voting in the state.
