Bloomberg Law
March 7, 2023, 9:45 AM

Confusion Shrouds High Court Election Case With 2024 on Horizon

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The US Supreme Court’s surprise decision to seek additional briefing in a North Carolina voting case could push an open question on the role of state officials in setting federal election rules into 2024.

The justices, who have already heard the case, gave the parties until March 20 to submit additional briefs. They want to know whether action in February by North Carolina’s state supreme court means that the lower court intends to snatch it back and possibly rule anew.

The possibility that the case is delayed or dropped or if the North Carolina court takes things in another direction means there might not be a resolution before next year’s balloting.

While the big question centers on Republican efforts to get more power for state legislatures over elections in congressional races, critics of the litigation say a change in law by the Supreme Court also could extend to the presidential race. This heightens the urgency for clarity from the high court even more due to the tense climate nationally over elections for federal office, election law experts say.

It would be “good for the country” if the justices clarify the issue ahead of the 2024 vote, said Ohio State law professor Edward Foley. “Everyone needs to know the rules of the road.”

Historically Complex

UCLA law professor Rick Hasen said in a “Cases and Controversies” podcast that Moore v. Harper was “probably the most complicated election case I’ve had to explain.”

It starts with a 2022 ruling from the North Carolina Supreme Court that the state Constitution prohibits partisan gerrymandering or drawing voting maps based on party affiliation.

The court then led by elected Democrats also found that the GOP-controlled legislature had done just that in drawing the latest version of maps and struck them down.

Republican legislators appealed to the US Supreme Court even though the case had been decided under state law.

The North Carolina GOP argued that the US Constitution’s Elections Clause grants authority over election rules to legislatures, meaning that courts and executive agencies have little or no role to play.

Some justices at argument in December appeared skeptical of the far-reaching argument that critics say would deprive voters of crucial layers of protection, wreak havoc on election administration, and change a centuries-old constitutional understanding. It also seemed likely the conservative-led court would back some version of the GOP interpretation of the so-called independent state legislature, or ISL, theory in a ruling later this spring.

Both Courts

A change in control of North Carolina’s supreme court in 2023 to a newly elected Republican majority led to its order in February to rehear the case, prompting the US Supreme Court to tap the brakes on March 2.

In asking for more briefing, the US Supreme Court wants to know whether it still has authority to hear the case and asked the parties to address a technical concept of final judgment rule.

It’s “a statutory requirement” saying the justices don’t get to review a case until lower courts are done with it, said Dean Vikram D. Amar of the University of Illinois College of Law.

“The North Carolina Supreme Court had been done with it for about a year,” he said. “But now they are saying we’re going to look at it again.”

Part of the confusion comes from the fact that it isn’t clear what the state supreme court wants to reconsider. University of Iowa election law professor Derek Muller said the state justices technically agreed to hear the remedy portion of the case on what new voting maps look like.

But Muller said the newly constituted bench in North Carolina “obviously wants to rip up” the previous ruling and could say something about the merits. A dissent by state Justice Anita Earls to the rehearing order said as much.

Amar said the merits and remedy are “inextricably linked.” There are ways for the state court to rule on the remedy without affecting the merits, but there’s also a path for a ruling that would upend the merits of the independent state legislature question.

Never Closed

The scope and timing of the North Carolina Supreme Court ruling is still up in the air. But even if it winds up deciding the merits, the US Supreme Court could step in again. There are exceptions to the final judgment rule, especially if the failure to resolve an issue might “seriously erode” US policy, Muller said.

It’s also not clear that the justices even are looking for a way out of the case. “It seems more like trying to ensure that it’s on solid ground,” said Rebecca Green, an election law professor at William & Mary Law School of the unsolicited request for new briefing.

And with unknowns surrounding the ISL theory, especially in the context of a presidential election, some legal scholars would welcome a US high court decision.

“We’re really in uncharted waters,” said Amar. “If there’s any wiggle room for the justices to decide the North Carolina case, they should take it.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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