WASHINGTON, D.C. (WGHP) – Attorneys from Washington representing the interests of North Carolina will step in front of the United States Supreme Court on Wednesday morning and attempt to get justices to define a key constitutional point: What does the word “manner” mean?
This case – and ultimately the ruling associated with it – will forever be known in law books as Moore v. Harper et al. The names associated are North Carolina House Speaker Tim Moore (R-Cleveland) and Rebecca Harper, an example of a defendant representing the public through voting rights advocates such as the North Carolina League of Conservation Voters and Common Cause.
Ultimately the plaintiffs are asking the court to rule that only lawmakers – not courts – can draw lines for electoral districts, citing the wording in Article 1 of the U.S. Constitution as the arbiter of this issue. That’s where the word “manner” emerges. Is the General Assembly the ultimate “manner” of redistricting?
We started on the path to this moment a year ago, when Harper et al sued Moore and Senate Leader Phil Berger (R-Eden) because, they argued, the electoral maps adopted by the General Assembly were illegal gerrymanders. A trial court in Wake County upheld the maps.
But the North Carolina Supreme Court ultimately determined voters’ rights had been violated by the way lawmakers had drawn maps for Congress and the General Assembly following the 2020 census. The justices employed special masters to review and ultimately to redraw the boundaries used in November’s election.
Moore et al appealed to SCOTUS that the state courts acted improperly, but, although federal justices ruled against them, saying they didn’t have time to consider the argument because the election process was underway, they agreed to this week’s hearing as a follow-up.
Attorneys for both will stand before the court starting at 10 a.m. today to plead their cases and consider the nine justices’ questions — if you want to hear what they say, there is a live audio broadcast – which sometimes can provide a clue about the foundational principles on which the justices are forming their opinions.
The impact of the hearing
Moore said when the review was announced that this case is important for “the security of elections nationwide.”
“On the heels of another victory at the U.S. Supreme Court, I am confident that this court recognizes what our state Supreme Court failed to recognize — that the United States Constitution explicitly gives the General Assembly authority to draw districts and that authority must be recognized,” he said.
That statement explains why this case, although about North Carolina, would and could return a judgment that changes the level of unanimity with which every legislative body in America decides matters for elections.
In some states, there are laws that direct a non-legislative body to draw district lines. In others, governors can override commissions and legislators by veto or other authority. In North Carolina, this is a bid to remove any checks on the General Assembly because the courts would not be able to reverse a map, and the governor has no veto on this issue.
Elections analysts suggest redistricting is what allowed Republicans to take control of the U.S. House, and this Supreme Court review is so significant that the chief justices from all 50 states, the Conference of Chief Justices, in a nonpartisan amicus brief written by counsel, urged that the court reject the argument proffered by the plaintiffs.
An expert’s insight about ‘manner’
We wanted to know more and understand the reach of this case, so we asked an expert, retired Associate Justice Robert Orr, who served on the state Supreme Court from 1995 to 2004, in the years before lawmakers required justices to be chosen in partisan elections. He was a Republican candidate for governor in 2008, losing that primary to Pat McCrory.
Orr also was one of the special masters serving the trial court this past spring, and he was part of the Trusted Elections Tour, which held forums across the to promote security and voting access.
His answers are included with light editing, and the capitalizations for emphasis are his.
WGHP: Why do you think the Supreme Court agreed to take this case?
JUSTICE ROBERT ORR: The Supreme Court decided to hear the case, in my opinion, because the conservatives on the Court (or at least some of them) seem inclined to impose limits on the judiciary’s review of redistricting for congressional elections. The US Constitutional provision at issue (Art. I, Sec. 4) only applies to federal elections – not state legislative elections – but the discreet scenario in Moore v. Harper focuses on the NC Supreme Court striking down a legislatively redrawn map of congressional districts and a 3-judge trial panel then utilizing Special Masters to assist it in redrawing the congressional maps for the ’22 election. The US Supreme Court, particularly the conservative wing of the Court, appears to want to determine if that process violates the U.S. Constitution.
WGHP: What do you see as the overriding legal issue the justices must address/clarify in this case?
ORR: I believe that the overriding legal issue in the case is how broadly or narrowly you interpret and apply the term “manner” in Art. I, Sec. 4. That provision says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; ….” Time and place are pretty obvious terms as to what they mean, but what does “Manner” mean? Does “Manner” include the redistricting process, and if so, does judicial review of that process for compliance with the N.C. Constitution, run afoul of Art. I, Sec. 4?
WGHP: If you were hearing the case, what one question would you want to be answered?
ORR: I would want to ask about the intent of the Framers in using the word “Manner” in the Article and the Framers’ meaning as to the scope of the term. Does “Manner” include redistricting and if so, does that mean that the N.C. courts have no authority to either strike down and/or order maps redrawn by someone other than the Legislature even if there is determined to be a violation of the N.C. Constitution? A hypothetical to ask: “The N.C. Constitution prohibits felons from voting unless citizenship is restored. If the Legislature passed a law allowing all felons, regardless of their citizenship status, the right to vote in a congressional election, would the N.C. Courts be prohibited under Art. I, Sec. 4 from striking down the legislative act?”
WGHP: We seem to have suits about election districts every other year, with lines moving regularly. What can be done to end this game of electoral Pictionary?
ORR: There’s probably nothing possible to end all litigation over redistricting but a non-partisan process with very discreet requirements for the districts and discreet prohibitions would be a start. For example, requiring compactness and contiguity are the types of characteristics that could be required and prohibiting the use of voting data and analytics to draw the districts would also be useful.
WGHP: If the judicial was created as a regulatory/enforcement branch for the laws created by the legislative, does this case not jeopardize the ability of courts to police bad laws and, worse, corruption?
ORR: The Courts are not responsible for “policing bad laws.” The Courts are responsible for striking down laws that are in conflict with the N.C. Constitution and the U.S. Constitution. In addition, Courts are responsible for interpreting laws and constitutional provisions both state and federal. For example, what does “Manner” mean in the context of Art. I, Sec. 4? Unfortunately, Courts can’t strike down laws just because they’re “bad.”
WGHP: This case is being argued based on the drawing of political districts, but could a ruling in favor of Speaker Moore carry the potential for impacts on other issues? And if so, could you provide some examples?
ORR: A ruling in a case at the appellate level doesn’t just impact “the bottom line” of the case decided and who wins or loses. What is written in the Court’s Opinion is really the heart of the case. and Opinions (or portions of an Opinion) can be written narrowly with a fairly minimal impact on other potential cases — or the Opinion (or portions of an Opinion) can be written broadly having an extensive application for various issues and cases that arise in the future or in pending litigation. In Moore v. Harper how narrowly or broadly the majority writes in determining the scope of the term “Manner” can have minimal impact on other cases or it could have a huge impact. If broadly interpreted, then “Manner” could include any component of an election process for Congress or Senate with a federal constitutional mandate barring state judicial review of the legislation.