(WASHINGTON) — One of the biggest Supreme Court cases of the year — with major stakes for U.S. elections and who decides when, where and how people vote — could be thrown out.
In an unusual twist, the justices on Thursday issued an order asking both sides in Moore v. Harper to submit written explanations on why they should continue to decide it, indicating that they may find the matter moot in light of new state-level developments.
The dispute between the North Carolina GOP and a group of voting rights advocates, backed by the Biden administration, centers on the role of state courts in resolving election disputes.
The Republican lawmakers have advanced a fringe legal concept, known as the “independent state legislature theory,” that only legislators can set election policy and can do so largely free from any oversight by state courts or even governors.
Democracy advocates say that if the theory is adopted, it could upend state election laws nationwide.
The North Carolina Supreme Court initially ruled against the conservative lawmakers, who in turn appealed to the nation’s highest court. The justices heard oral arguments in the case late last year and have been poised to issue a ruling this spring.
But last month, the state Supreme Court, newly controlled by Republican justices, agreed to grant a rehearing in the case, on March 14. That rekindled the litigation at a state level and may serve to keep the U.S. Supreme Court on the sidelines while it plays out.
The justices’ order on Thursday asks the parties to explain why they still have jurisdiction in light of this development.
“It raises the question whether the U.S. Supreme Court’s decision in Moore v. Harper could become moot,” Rick Hasen, a University of California, Irvine, law professor and election law expert, wrote in February.
Looking back at the arguments
In an extraordinary and tense debate stretching three hours during a hearing in December, the North Carolina Republicans asked the U.S. Supreme Court to reinstate a gerrymandered election map drawn by the GOP-controlled state legislature after it was thrown out by the state Supreme Court for violating the state constitution.
A court-appointed panel drew a new map which was used during the 2022 midterm election.
The plaintiffs argued before the justices that the U.S. Constitution’s elections clause expressly empowers the state legislature, and legislature alone, to dictate the “time, places and manner” of federal elections.
“States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function,” argued attorney David Thompson, representing the Republicans.
A group of North Carolina voters and pro-democracy advocates opposed the move as contrary to the nation’s history and tradition and warned that it would invalidate hundreds of election laws in every state.
“The blast radius from their theory would sow elections chaos,” said attorney Neal Katyal, the former Obama administration solicitor general representing the voters.
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