NC high court bars partisan gerrymandering claims, throwing SCOTUS case into doubt

The case challenging the "independent state legislature" scheme could be tossed as a result of the North Carolina Supreme Court decision. Also: The latest DOJ, death penalty, and LGBTQ news.

The North Carolina Supreme Court — with its new Republican majority — reversed a prior North Carolina Supreme Court ruling and held in a 5-2 decision that “partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.”

As Dave Wasserman tweeted, of the bottom-line politics: “This could wipe out four Dem seats, nearly doubling the GOP’s cushion in the House.” The decision has ongoing ramifications in North Carolina outside of the congressional map question, given the end to partisan claims under the state Constitution. (The Roberts court already brought an end to such claims under the U.S. Constitution.)

The big question, SCOTUS-wise, is what this will do to Moore v. Harper, the “independent state legislature” scheme case that was premised on the North Carolina Supreme Court’s first of now-three opinions on this matter.

The parties have already submitted some supplemental briefing on this issue, when the North Carolina Supreme Court announced they were revisiting the issue. The question now is whether the U.S. Supreme Court pushes this further by seeking an additional round of supplemental briefing, dismisses the case, or decides that they retain jurisdiction to decide the case.

The justices deciding to toss the case now might very well be an easy move, given Friday’s decision.

The problem with doing so is that such a move will mean that the “independent state legislature” scheme will continue to percolate, with its fringe advocates seeking to push it into use against other states in other courts. The scheme didn’t fare well in arguments at the U.S. Supreme Court — this Supreme Court! — and it appeared there was a good chance a majority of the court would put an end to at least the strongest recognition of it that the North Carolina Republican lawmakers were seeking.

Alternatively, if a majority of the U.S. Supreme voted to recognize the “independent state legislature” scheme as something legitimate, they should do so. Lay it out there, don’t hide the ball. Accepting the scheme would continue to erode the legitimacy of this court — and, if they’re going to do things like recognize the “independent state legislature” scheme as something legitimate, they should be illegitimized.

As Common Cause argued in its supplemental briefing, regardless of what the North Carolina Supreme Court did with the case now, “this Court should still reach this crucial constitutional question, which is fully briefed and argued before this Court, and which is capable of repetition but has continued to escape this Court’s review. The Court should, if at all possible, decide this question now, rather than on an emergency basis during the 2024 election cycle.”

UCLA law professor and election law expert Rick Hasen did highlight a possible pre-2024 election case that could serve as a next case to resolve this issue if the court does toss Moore v. Harper:

If the U.S. Supreme Court now dismisses Moore v. Harper as improvidently granted, I think there’s a decent chance it grants review in an Ohio case raising similar issues, Huffman v. Neiman. It is crucially important that the Supreme Court resolve the scope (if any) of the independent state legislature theory in a case before the 2024 elections. It would be terrible for the country for the U.S. presidential election to turn on this issue without earlier guidance from the Court on the theory’s scope.

Putting off a decision isn’t as bad as recognizing it, but it does have costs by keeping the “independent state legislature” scheme available as a tool for the people promoting it. And that is troubling in and of itself.

Whatever happens, Law Dork will monitor and cover future developments on this issue.

What else am I watching? There’s been a lot this week, but here are a handful of some of the most high-profile stories still on my radar.

In DOJ news

The Justice Department filed a complaint in Tennessee, seeking to join the ongoing lawsuit against Tennessee’s new law banning gender-affirming care for minors, S.B. 1. The DOJ complaint alleges that the new law violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

As part of DOJ’s motion to intervene in the ongoing litigation, U.S. District Judge Eli Richardson ordered Tennessee officials to respond by May 4. If Tennessee opposes the motion to intervene, Richardson ordered DOJ to reply within three days of Tennessee’s response.

Also, not to be forgotten, the mifepristone case is moving forward toward May 17 arguments at the U.S. Court of Appeals for the Fifth Circuit. DOJ and Danco Laboratories filed their merits briefs this week.

And, DOJ went to the U.S. Court of Appeals for the Fifth Circuit in the Affordable Care Act preventative care case, asking for a partial stay — of the national scope of the opinion — while the appeal is ongoing. (This followed the trial judge, U.S. District Judge Reed O’Connor, having refused to rule on DOJ’s similar request before him.)

In death penalty news

The Oklahoma Pardon and Parole Board, on a 2-2 vote, did not recommend clemency for Richard Glossip.

As Republican Oklahoma Attorney General Gentner Drummond said in a statement in response that he was dissppointed, adding, “I believe it would be a grave injustice to execute an individual whose trial conviction was beset by a litany of errors.”

Glossip’s lawyers have asked Oklahoma Gov. Kevin Stitt to issue another 60-day reprieve of execution. They also have since gone to the U.S. Supreme Court asking for a stay of execution as part of an appeal of the Oklahoma Court of Criminal Appeals ruling against Glossip from last week. Notably, in filing, the lawyers wrote that “[t]he State of Oklahoma does not oppose this application ....”

As of now, though, Richard Glossip’s execution — despite extreme doubts about his guilt — remains scheduled for May 18.

In (more) LGBTQ news

After removing Montana Rep. Zooey Zephyr from the floor and gallery for the remainder of the term, the lawmakers decided that wasn’t enough — using, as Zephyr tweeted, a variety of procedural and parliamentary tricks to empty her committees of their legislation.

As the Daily Montanan reported, “Republican leadership announced that the committees on which Zephyr serves will no longer be meeting for the remainder of the legislative session.”

The Texas Senate passed S.B. 1029, an extreme anti-transgender bill targeting gender-affirming medical care, which is now in the House. Erin Reed covered the Senate passage earlier this week.

Texas Could Be The Next State To End Most Adult Trans Care

We are still awaiting a ruling, expected by Monday, on the lawsuit against Missouri Attorney General Andrew Bailey’s extreme anti-trans “emergency rule” severely limiting gender-affirming medical care for people of all ages. A Missouri judge earlier this week had issued a temporary stay of the rule before it went into effect to give the court time to consider the request for a temporary restraining order against the rule.

Finally, in Kansas, there was a piece of good news interspersed with bad this week. After Democratic Gov. Laura Kelly vetoed several anti-trans bills last week, the legislature overrode some of them this week, including S.B. 180 (a “women’s bill of rights” that defines “female” and “male” is actually a bathroom ban and more) and S.B. 228 (applying those “female” and “male” definitions to county jails). The veto of a bill banning gender-affirming medical care for minors (S.B. 26), however, was sustained, meaning the bill will not become law.