RALEIGH, N.C. – Republicans in the North Carolina General Assembly didn’t waste much time in asking the question the U.S. Supreme Court seems willing to answer: Who is responsible for drawing district lines for state elections?

Lawmakers on Thursday filed a petition for a “writ of certiorari” with the Supreme Court, House Speaker Tim Moore (R-Cleveland) announced in a release, opening further the door justices left ajar just last week in denying these same plaintiffs’ appeal for a ruling on this same matter.

House Speaker Tim Moore (NCGA)

You likely recall that on March 7 SCOTUS rejected appeals by Moore et al – and another in Pennsylvania – to intervene for the 2022 election about who should be drawing electoral maps, saying the appeals were too deep into the election process, as they had ruled a month earlier on a case involving Alabama.

But at least two associate justices, both conservatives, indicated they would be willing to take up this decision when they had more time for a full airing of arguments and consideration of opinions.

“The U.S. Constitution is crystal clear: State legislatures are responsible for drawing congressional maps, not state court judges, and certainly not with the aid of partisan political operatives,” Moore said in the release.

“We are hopeful that the Supreme Court will reaffirm this basic principle and will throw out the illegal map imposed on the people of North Carolina by its highest court. It is time to settle the Elections Clause question once and for all.”

Justice Brett Kavanaugh, seen here in 2018, learned of his positive COVID diagnosis on Thursday night, following a test earlier in the day. (Jabin Botsford, Pool/Getty Images)

A statement issued by Associate Justice Brett Kavanaugh on March 7 had cited the “Purcell Principle” that established such a question couldn’t be answered too near the candidate filing window and election, but he also indicated that the court may consider these arguments on some future case, opening the window for rewriting the precedence the court had established by saying in 2019 that such matters were left to state courts.

But the conservative control of the court has expanded since then, with the addition of Kavanaugh and Associate Justice Amy Coney Barrett, and Kavanaugh said he and Justice Samuel Alito agreed that “both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it.”

He said if there were to be an appropriate petition that he believes the court should review the issue — “either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.”

Candidate filing closed in North Carolina on March 4, and the Primary Election is scheduled for May 17. That’s why the Supreme Court said there was no time to review this matter at this time.

A “writ of certiorari” is simply a legal term in which a higher court would review decisions made by lower courts for any irregularities.

“Activist judges and allied plaintiffs have proved time and time again that they believe state courts have the ultimate say over congressional maps, no matter what the U.S. Constitution says,” Senate Leader Phil Berger (R-Rockingham) said in a release. “We must continue this fight to restore the primacy of the legislature and put an end to these efforts to undermine its constitutional duty.”

The larger issue

The maps used in this election were the product of court-ordered redraws and are for the 2022 election only. Lawmakers have been expected to redraw the 10-year maps for the 2024 cycle. Any redraw could come under further scrutiny by the courts.

Throughout the previous decade, maps were drawn, challenged, reviewed and redrawn based on a variety of issues. All of those arguments began with an effort by the Republican-controlled legislature to produce maps that would have entrenched or expanded the GOP’s control in both Raleigh and Washington, even though Republicans now are the third biggest blocks of registered voters (30.3%, behind Democrats and unaffiliated voters).

In some states, such as Ohio, Colorado and Virginia, independent, nonpartisan election commissions are constitutionally empowered to draw electoral maps. Bills to establish such a commission in North Carolina have drawn bipartisan support, but they have been left to languish in committees. Similarly, the voting rights bill passed by Congress would require states to establish such commissions, but the U.S. Senate has not taken up that bill.

How we got here

From left, Superior Court Judges Nathaniel Poovey, Graham Shirley and Dawn Layton listen to testimony during a partisan gerrymandering trial over North Carolina's new political maps, Jan. 3, 2022 at a courtroom at Campbell University School of Law in Raleigh, N.C. The panel of trial judges made additional changes to North Carolina's congressional district map Wednesday, Feb. 23, 2022 declaring that the latest U.S. House redistricting performed by the General Assembly fails to meet standards of partisan fairness set recently by the state Supreme Court. (Travis Long/The News & Observer via AP)
From left, Superior Court Judges Nathaniel Poovey, Graham Shirley and Dawn Layton listen to testimony during a partisan gerrymandering trial over North Carolina’s new political maps, Jan. 3, 2022 at a courtroom at Campbell University School of Law in Raleigh, N.C. The panel of trial judges made additional changes to North Carolina’s congressional district map Wednesday, Feb. 23, 2022 declaring that the latest U.S. House redistricting performed by the General Assembly fails to meet standards of partisan fairness set recently by the state Supreme Court. (Travis Long/The News & Observer via AP)

Lawmakers on March 4 had asked the Supreme Court to overturn the congressional map approved by a Republican-majority, 3-judge panel in Wake County Superior Court just a week earlier, saying that court had no right to draw a map, that it was the constitutional purview of the General Assembly.

That panel in Wake County had employed three former judges as special masters to review remedial maps that the state Supreme Court had ordered lawmakers to redraw because their original maps for Congress and the General Assembly, adopted in November, were judged to be unconstitutional partisan gerrymanders that in some cases disenfranchised minority candidates and voters.

The special masters approved the maps lawmakers drew for the state House and Senate, but they “modified” the map for Congress, citing in their ruling that lawmakers were responsible to draw the maps and they simply adjusted some districts. That map appears likely to elect seven Republicans and six Democrats, with the 13th District south of Raleigh considered to be a toss-up.

All those maps were appealed by all parties – the North Carolina League of Conservation Voters, Common Cause, a Harper et al group of voters (the three original plaintiffs) and Republicans in the General Assembly – and the state Supreme Court rejected those appeals and enacted the maps.

That led to the first futile appeal for a stay filed with the U.S. Supreme Court.