UNBIASED - Special Report: Harper v. Hall/Moore v. Harper

Episode Date: May 4, 2023

On April 28, 2023, the North Carolina Supreme Court overruled itself in a case called Harper v. Hall. It held that courts cannot interfere with the state legislature's authority in drawing congressional and state legislature redistricting maps. There are a lot of layers to this case, but perhaps what makes it even more complex is the fact that the Supreme Court of the United States heard this case just a few months ago. Now, the Court may lack jurisdiction to issue a ruling. In this episode, Jordan discusses the facts, the procedural history, Harper I, Harper II, and the implications this recent ruling has on the case pending in the Supreme Court.The States' Redistricting Authority Per the US Constitution (4:39)Harper I Decision (7:04)Harper II Decision (14:53)Supreme Court Implications/Independent State Legislature Doctrine (19:59)If you enjoyed this episode, please leave a review and share it with those you know that also appreciate unbiased news! Follow Jordan on Instagram, TikTok, and YouTube.  All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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analysis. This episode is specifically dedicated to a case called Harper versus Hall, otherwise known at the Supreme Court level as Moore versus Harper. This is a North Carolina Supreme Court case that made its way up to the Supreme Court of the United States, but there is now question as to whether the Supreme Court will even make a decision on this case. This case made a lot of headlines last summer. It's an important case, which is why I'm doing a special episode on it. Every so often there are special current events or special Supreme Court rulings where I will do an episode dedicated specifically to that. So this is a, this is a case with a lot of layers. There's a lot to it, but I am going to break it down for you, like I usually do. So before we get into it, let me just remind you, per usual, if you could please

leave me a review on whatever platform you listen, it would be so, so appreciated. It really helps support my show. I also did want to give you an update from the last episode. So on Tuesday, I discussed the Montana lawmaker, Zoe Zephyr, who filed a lawsuit against the state following her censure. So she was censured from the House of Representatives in Montana after she spoke out in opposition against a bill that banned gender affirming care. She is a transgender herself, and the House called for her censure. So she is no longer allowed to debate on the House floor for this session, the 2023 session that is. So she filed a lawsuit asking the court to enjoin the state from being able to enforce certain provisions of that censure

and the speaker's rule where he's not going to recognize her until he feels she can maintain decorum. Well, the update on that case is that the judge ruled on Tuesday night that the court's authority was limited due to the constitutional separation of powers between the legislative and judicial branches. So specifically in his ruling, he said, quote, even if the court ultimately finds the House of Representatives, the Speaker of the House, and the Sergeant at Arms acted unlawfully under the facts of this case, the court does not have the authority to issue a broad permanent injunction to effectively remove all legislative authority in relation to a single member. So the

court will not be intervening in that. There was some talk by the ACLU about appealing this lawsuit, but it likely won't happen just because the session is set to end soon anyway. So that's the deal with that. But let's get into Moore versus Harper, Harper versus Hall. Harper versus Hall is a case out of North Carolina. It made its way up to the Supreme Court of North Carolina before it was appealed to the Supreme Court of the United States, where it was renamed Moore v. Harper. The bulk of this discussion is going to focus on Harper v. Hall, which is the case at the North Carolina Supreme Court. They heard this case on two different occasions, so there are two different decisions, Harper 1 and Harper 2. So the first part of this discussion and the majority of this discussion is in regard to Harper versus Hall. And then the last five minutes or so will be in regard to Moore

versus Harper, which again is the same case just at the Supreme Court level. So in summary, this is a case involving partisan gerrymandering claims. And the dispute in the court was whether the court could interfere with the legislature's power of drawing the districting maps. So according to the North Carolina Constitution, the legislature has the sole authority and power to draw redistricting maps. And the court said, we can't intervene with that. The Constitution is very clear that that's the legislature's power, and if we intervene, that's kind of a separation of power concern. So it made its way up through not only the Superior Court, but then to the State Supreme Court and back down and then back up. Like I said, complex

case, a lot of layers, but we're going to break it down. First, let's talk about how redistricting works. So redistricting happens every 10 years and it follows the completion of the U.S. Census. The U.S. Census happens every 10 years and following that states redraw both their congressional maps and their state legislature maps accordingly in accordance with the census. While this process is mandated by Article 1 of the United States Constitution, each state determines their own redistricting methods. And these methods vary from state to state. So again, there's congressional redistricting procedures, and then there's state legislative redistricting procedures.

But in both of those, there are three methods that a state can use in drawing their maps. So they can use a legislature-dominant method, a commission method, or a hybrid method. So the legislature dominant method is where the legislature has the sole authority and responsibility in drawing these maps. A commission method is when a commission, so it's a separate body, draws the maps. And then a hybrid method is a mix of the two. So North Carolina, where this case takes place, has a legislature-dominant method in redrawing its maps. So when it comes to congressional redistricting, 33 states use the legislature-dominant method, eight states use the commission method, and two

states use a hybrid method. The rest of the states comprise one congressional district, so redistricting isn't necessary. And these states include Alaska, Delaware, North Dakota, South Dakota, Vermont, and Wyoming. And then when you get into state legislature redistricting, 33 states use the legislature dominant method, 14 states use the commission method, and three states use hybrid. So if you're interested in seeing what method your state uses, I do have a great article linked on my website, jordanismylawyer.com, and it breaks it down into charts based on congressional redistricting and state legislature redistricting,

and you can see which method your state uses. But as I said before, North Carolina uses that legislature dominant method. Where you can get into trouble with redistricting is when politics come into play. So this is called partisan gerrymandering or just gerrymandering, and it's the practice of favoring one political party over another based on the drawing of the map. And this is the issue in this case. So following the 2020 census on November 4th of 2021, the North Carolina House and Senate enacted redistricting plans. Following the redistricting plans, the enactment of the redistricting plans, various lawsuits were brought by different groups. So one was brought by the North Carolina League of Conservation Voters. Another lawsuit was brought by a certain group of individual North Carolina

voters. And then another lawsuit was brought by another group of individual North Carolina voters. And these lawsuits were challenging not only the legality of the plans, because they were arguing they were unconstitutional partisan gerrymanders, but they were also alleging that the plans engaged in racial vote dilution in violation of the Free Elections Clause and the Equal Protection Clause. So what they were seeking was a preliminary injunction, and you've heard me talk about a preliminary injunction before, that basically stops the state from doing something or implementing something, whatever's at issue.

So in this case, the preliminary injunction was to enjoin the plan. So they didn't want these maps to be used in the elections going forward. So these three lawsuits are consolidated into one, and they're assigned to a three-judge panel of the Superior Court in Wake County, North Carolina. This is at the trial court level. So the name is kind of confusing. Superior Court, you would think is like an appellate court or something. It's not. It's the lowest court in the state. So plaintiffs are seeking that preliminary injunction I mentioned with this three-judge panel of the Superior Court. They deny it. The plaintiffs then appeal it to the

Court of Appeals asking for a stay. And again, you guys heard me talk about this recently with the Biden administration in the Mifepristone case. A stay is basically asking the appellate court to stay the lower court's order so it's not going to take effect until the case can be heard. Well, the appellate court denies this. They say, no, we're not going to stay this order. It's going to take effect. And these maps are going to be the maps that are used in the election. So the plaintiffs then appeal to the state Supreme Court. And they ask for a few things. But most importantly for this explanation is they ask for discretionary review at the state Supreme Court level before a determination by the appellate court. So they want this expedited to the Supreme Court so the Supreme Court can review it. And two, they're seeking that same preliminary injunction to

prevent the maps from being used in the 2022 election. And the state Supreme Court, they get this appeal and they say, okay, sure. And they grant both. So they grant the discretionary review and they grant the preliminary injunction to prevent the maps from being used in the 2022 election. And what they do is they issue an order directing that three-judge panel in the Superior Court to actually hold a trial on the matter and make a written ruling on or before January 11, 2022. Because before, they didn't actually hold a trial on the matter. They didn't hear oral arguments. They just denied the request for an injunction based on the briefs that had been submitted to the court as to why it should or shouldn't be

granted. So this trial is held. It's over within three and a half days. And on January 11th, that three-judge panel ultimately decides that this issue is a non-justicable political question. What does that mean? A non-justicable political question is basically an issue that is so politically charged that the courts decide they cannot hear it. They cannot get involved. So this is what the three-judge panel says. They say, no, this is too politically charged. We're not getting involved. And the reason they said is because the North Carolina legislature has the express sole responsibility under the state constitution for drawing these maps. And if the court were to get involved, it would be, quote,

usurping the political power and prerogatives of an equal branch of government. And it says, once it embarks on that slippery slope, there's no corner of the legislative or executive power that it could not reach. It could basically have a say in everything and anything, therefore violating the separation of powers. So this decision comes out and the plaintiffs go back to the North Carolina Supreme Court pursuant to that order for discretionary review that the Supreme Court had previously granted. So they bypass the appellate court in a sense, and the North Carolina Supreme Court hears the appeal. And in a four to three decision, the North Carolina Supreme Court rules that one, yes, these plans are in fact unconstitutional,

and they must be redrawn. In addition to that, they set forth a couple of tests that they say the legislature can use to determine constitutionality of the maps. One of these tests is known as the mean median difference test. The other tests is known as the mean-median difference test. The other test is known as the efficiency gap test. I'm not going to get into the details of the test because I think it's quite confusing and I don't want to confuse you with more information than necessary. So all you need to know is that the North Carolina Supreme Court set forth these tests and said, hey, if you use these tests as your kind of guide in redrawing these maps and you meet these thresholds, then the maps are presumably fine and constitutional. So this

decision out of the Supreme Court that the plans are unconstitutional, they have to be redrawn, and that there are tests that the legislature can use in determining constitutionality is known as Harper 1. So this is the first Harper decision out of the North Carolina Supreme Court. Now, the other thing that the North Carolina Supreme Court does in their decision is they send it back to that three-judge panel in the Superior Court, and they order the judicial panel to approve the new maps. So the legislature is to draw these new maps, and then it goes to the three judges for approval, and from there, it's seemingly over. Well, this is what happens. So the Superior Court

says, okay, we're going to appoint three special masters to review these maps, and the special masters are allowed to hire advisors of their own if they want. So the legislature goes back to the drawing board. They come up with these new maps in accordance with the tests that were set forth in Harper 1, and they submit them to the special masters to review. And the special masters approve the remedial house plan and remedial senate plan, but they reject the remedial congressional plan. Because remember, in the beginning of this episode, I said there's congressional redistricting and state legislature redistricting. So in other words, the special masters approved the state legislature maps, the redistricting maps, but they rejected the congressional redistricting map. So instead of sending it back to the legislature, that remedial

congressional plan that they rejected, the special masters decide that they're just going to take it upon themselves to redraw the map. They'll take on the help of an advisor, but they're just going to do it. They're not going to send it back to the legislature. They submit the remedial house plan and remedial senate plan that were drawn by the legislature, and then their own interim congressional plan to the three-judge panel. The three-judge panel adopts these maps, they approve them, and they say, okay, these are the maps that are going to be used in the 2022 election. All parties then petition the North Carolina Supreme Court to stay this ruling because no one's happy now. The legislature isn't happy with this interim congressional plan that they

didn't draw themselves, and the plaintiffs aren't happy because they say, no, these still aren't good enough. So they petitioned the Supreme Court to review them. But the Supreme Court of North Carolina denies this petition because they say, no, we're too close to the election at this point. We're not getting involved in this. These maps will be used for the 2022 election, and then we can potentially revisit it after. After the 2022 election, plaintiffs file a motion for the North Carolina Supreme Court to look at this again. And they say, we need you to look at these modified remedial maps and determine if these maps are constitutional. So the North Carolina Supreme Court looks at these maps and what they say is that the modified House plan is fine, but the modified congressional plan

and Senate plan are not. And in holding this, what they say is, look, while we still stand by these tests in Harper 1, that's not the ultimate deciding factor in determining constitutionality. And they say, quote, the trial court may consider certain data points within its wider consideration of the ultimate legal conclusion, which is whether the plan upholds the fundamental right of the people to vote on equal terms and to substantially equal voting power, end quote. And they say that the reason that they can't identify a specific set of metrics that would identify the constitutionality of a redistricting map is because the North Carolina Constitution speaks in these broad foundational principles, not narrow statistical calculations. So we can't interpret the Constitution to mean

any sort of specific data point, right? So this decision is known as Harper 2 because this is the second time now that the Supreme Court has looked at these maps and rendered a decision. This decision comes out in December of 2022. Well, it just so happens that on January 1st of 2023, the North Carolina Supreme Court was flipped. It went from being a Democrat majority to a Republican majority. And the defendants, being the General Assembly, the legislature, they decide they are going to file a petition for rehearing. And they say this case needs to be reheard because the most recent ruling, that Harper 2 decision, confirms that the previous standards set forth by this court in Harper 1 are unmanageable and therefore this is

a non-justicable issue. This isn't something that the court can possibly decide because even the court is confusing itself. So they say this case needs to be reheard. The North Carolina Supreme Court agrees to hear this case again. They rehear it on March 14th of this year, and the decision just came out on April 28th. And this is what they say. So this is a 218-page decision, so it's safe to say I'm not reading you the whole thing, but I do want to read you the conclusion, which I think sums up the entirety of their analysis and their decision in just a few paragraphs. And what they say is this, they say for 200 years, our Supreme Court

has faithfully sought to implement the intent of our drafters of our state constitution by interpreting that foundational document based on its plain language and the historical context in which each provision arose. Recently, this court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution. Today, we return to the text of the state constitution, correct our course, and come back to the proper understanding and application of our fundamental constitutional principles. Apportionment is textually committed to the General Assembly,

and apportionment legislation is entitled to our long-standing standard of review, a presumption of constitutionality, and a required showing that the legislation is unconstitutional beyond a reasonable doubt. There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims. Courts are not intended to meddle in policy matters. In its decision today, the court returns to its tradition of honoring the constitutional roles assigned to each branch. This case is not about partisan politics, but rather about realigning the proper roles of the judicial and legislative branches. Today, we begin to

correct course, returning the judiciary to its designated lane. And it finishes by saying this court's opinion in Harper 1 is overruled. This court's opinion in Harper 2 is withdrawn and superseded by this opinion. The three judge panel's February 23rd order addressing the remedial plans is vacated. Plaintiffs' claims are dismissed with prejudice. Dismissed with prejudice just means that this case cannot be brought again. So that is the most recent North Carolina Supreme Court ruling. It overruled itself, and that ruling that I just read you stands. So now what? Well, now the General Assembly of North Carolina will enact a new set of congressional redistricting

plans that haven't been interfered with by special masters or the court or anything like that. It's specifically going to be designated to the General Assembly. They are not going to be interfered with by the court in the future, and they will remain unaltered until the next census in 2030 when they have to be redrawn. So now this is where the case gets a little more complex. The Supreme Court of the United States heard oral arguments on December 7th. The basis for the Supreme Court of the United States hearing this issue is because the legal theory that this case rests on is the independent state legislature doctrine, which stands for the proposition that the legislature of the states make all of the election rules for those states. And the most extreme reading or interpretation of that doctrine is that the legislature has all authority, sole authority. No one else can intervene. And this

can obviously have far-reaching implications. So when it was heard in front of the Supreme Court in December, justices that are typically right-leaning like Justice Kavanaugh and Justice Barrett actually expressed some hesitation in accepting such an extremist view. So when I was reading through the summary of the oral arguments months back, I actually thought that the Supreme Court was going to rule in favor of the plaintiffs in this case and say that the independent state legislature doctrine does not mean that lawmakers have sole authority. Now, obviously, their decision could range from one extreme view to the next extreme view. You can't really predict exactly what the Supreme Court would rule on an issue like this. They

were supposed to release their decision sometime between now and the end of July. But now that the Supreme Court of North Carolina overruled itself and issued a new decision, we're not sure if the Supreme Court is even going to make a decision on this case. And the reason for that is potential lack of jurisdiction. So on March 2nd, when the North Carolina Supreme Court originally agreed to rehear the case, so this is before their ultimate decision, but they had said, yes, we're going to rehear this case and make a final conclusion. The Supreme Court of the United States had already heard oral arguments on this case, and they issued an order to the parties in the case, and in the order they said, okay, you need to submit to us briefs

that address the question of what effect the North Carolina Supreme Court's decision to rehear this case has on our jurisdiction over the matter. And in that order, the court specifically references a section of the U.S. Code that pertains to jurisdiction of the court in cases like this. And what that section says is that there are certain circumstances in which the Supreme Court can review final judgments rendered by the highest court of a state. So here's the issue with that. The Supreme Court of the United States heard oral arguments surrounding the Harper 1 decision, which it can now be argued that was not a final decision of the state's highest court because it's now been overruled. Therefore, the Supreme Court of the

United States may very well lack jurisdiction over what they heard in December. Does that make sense? So according to the U.S. Code, the Supreme Court has jurisdiction over final judgments, but now that that previous decision has been overruled, it's no longer considered a final judgment. So can the Supreme Court hear it? That's the ultimate question. Those briefs were due to the Supreme Court of the United States by March 20th. Of course, the lawyer on the plaintiff's side is going to argue that, yes, the Supreme

Court of the United States still has jurisdiction because they obviously don't want this case to end where it's at. They want the Supreme Court to have the ultimate say. The defendants, on the other hand, the General Assembly, the legislature, they're going to argue the other way. They're going to say, actually, no, you guys don't have jurisdiction anymore. We're good with this final judgment here in North Carolina. So from here, the Supreme Court will eventually let us know what they decide. We'll likely hear about it relatively soon.

I mean, definitely before they recess. So they can either say that this case is moot, meaning the issue is no longer an issue, or they can dismiss it due to lack of jurisdiction, as we just talked about, or there's a slight possibility they can still render a decision should they decide they still have jurisdiction over the matter, though that last option is not as likely as the other two. Now, I had mentioned that independent state legislature doctrine, and that is something that's been talked about recently in the last year specifically, and I don't doubt that the Supreme Court will eventually end up hearing a case that has to do with the independent state legislature doctrine. It may not be Moore versus Harper, but it could very well be another case dealing with

this issue. Just because, again, like I said, it's been such a hot topic. So I hope that cleared up this case for you. And now when the Supreme Court does issue their decision as to whether or not they still have jurisdiction, and if they do have jurisdiction, how they will rule, now you have a much better, deeper understanding of the background of this case. I hope you enjoyed this episode. Please don't forget to leave me a review, and please share this episode with any of your family, friends, or colleagues that you feel will also appreciate nonpartisan, unbiased reporting. As I've said before, word of mouth is truly everything for podcasters like myself.

Thank you so much for being here and I will talk to you tomorrow.