By Mitch Kokai, Carolina Journal

Each of the plaintiffs in North Carolina's legal dispute over election maps is asking the U.S. Supreme Court to stay out of the fight. So is the N.C. Justice Department.

But Republican state legislative leaders are also seeing support for their plea to the nation's highest court. Lawmakers want the Supreme Court to block a map drawn by a state court for this year's N.C. congressional elections.

U.S. Chief Justice John Roberts is considering GOP lawmakers' request for an emergency stay. That action from Roberts and his colleagues would scuttle the court-drawn congressional map. Roberts set 5 p.m. Wednesday as the deadline for responses to lawmakers' request.

"This Court should decline Applicants’ invitation to upend North Carolina’s administration of its elections at this late juncture," reads the response from plaintiffs in the case dubbed Harper v. Hall. They make up one of three sets of plaintiffs supporting the court-drawn map.

"Where North Carolina courts have enforced North Carolina’s Constitution pursuant to North Carolina’s statutory procedures to ensure that North Carolina voters are not forced to choose their members of Congress based on a gerrymandered map, this Court should not say otherwise," according to the Harper plaintiffs' brief.

"With candidate filing set to close in two days and the congressional primary imminent, Applicants make an eleventh-hour request to throw North Carolina's electoral process into disarray," according to a brief from plaintiffs led by the N.C. League of Conservation Voters. "Their radical theory is that this Court should jettison at least half a dozen of its decisions, spanning a century, and hold for the first time that the Elections Clause prohibits state courts from applying state constitutions to state legislation that regulates congressional elections."

"[I]n apparent defiance of this Court’s holding that state courts can apply state constitutional standards in redistricting cases, Applicants now ask this Court to hold the exact opposite — that a state court cannot apply a state constitution to review any state election law related to elections for federal office," according to the third plaintiff, left-of-center activist group Common Cause. "Rather, Applicants argue that, when such election laws are adopted, voters are without any recourse to state courts even when a state legislature violates the very constitution under which it was established."

Lawyers from the N.C. Justice Department offered a different argument against U.S. Supreme Court action. Representing the State Board of Elections, state government lawyers warn that the high court could cause serious problems for the 2022 election timeline.

"Consistent with the State Board’s guidance, the North Carolina Supreme Court moved the statewide primary to May 17 and entered orders effectively finalizing the State’s new districts on February 23," according to the state's brief. "The stay that Applicants request would jeopardize this carefully calibrated timeline."

More court action would cause problems for candidates, the state's lawyers argued. "As of yesterday, March 1, the candidate-withdrawal deadline has passed," they wrote. "If this Court enters a stay and the State reverts back to the old congressional map, any number of candidates will find themselves registered to run in the wrong district or for an office they no longer wish to pursue."

"Given this context, Applicants’ stay request should be denied. It is a 'bedrock tenet of election law' that courts should not interfere with a State’s elections laws and procedures 'in the period close to an election.'”

Along with briefs opposing U.S. Supreme Court involvement in the case, national and state Republican groups offered friend-of-the-court briefs supporting N.C. legislators' plea.

"[U]nder Article I, Section 4 of the Constitution, it is the State legislatures, subject to congressional supervision, that are entrusted with the responsibility of redrawing the States’ congressional districts," according to a brief from the National Republican Redistricting Trust. "The unauthorized intrusion of the North Carolina courts into this process threatens to topple this constitutionally imposed hierarchy of responsibility."

"[C]ertain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government," according to a joint brief from the Republican National Committee, NRCC, and the state GOP. "The North Carolina courts’ latest usurpations bring this issue back to the Court."

"While much ink has been spilled lamenting the chronic practice of some state courts straying far beyond the jurisdictional boundaries set by the Elections Clause, the problem is neither abstract nor formalistic," according to the Republicans' brief. "The North Carolina Supreme Court’s decision to tread over the work of the State’s legislature was motivated by the Court’s assessment of social science offerings that, when placed under any modicum of scrutiny, do not, and cannot, show that North Carolina’s congressional districts 'were intentionally constructed to yield a consistent partisan advantage for Republicans.'”

At issue is a new election map for North Carolina's 14 seats in the U.S. House of Representatives. After the N.C. Supreme Court rejected the General Assembly's first version of a new map, a three-judge Superior Court panel rejected a redrawn remedial plan. The panel instead voted to use a map drawn by three outside consultants labeled special masters.

Republican legislators argued that their remedial plan would have been likely to elect six Republican congressional representatives and four Democrats. The two major parties would have battled for the other four seats in some of the nation's most competitive elections.

By contrast, the court-drawn map is likely to elect seven Republicans and six Democrats, with one district likely to swing between the two major parties.

There's no deadline for Roberts to rule on N.C. legislative leaders' request. He could make a decision on the emergency application himself or consult the full nine-member court.