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North Carolina goes to Washington 

By Troy Shelton 

Two of the blockbuster cases at the U.S. Supreme Court this term hail from North Carolina. Here’s a look at the two cases, now that oral arguments are over. 

The Affirmative Action Cases  

No need to bury the lede: Affirmative action died when the Court granted certiorari.  

District Judge Loretta Biggs, of our Middle District, concluded that UNC’s affirmative action program is lawful. Now at the Supreme Court, the central question is whether the Court should overturn Grutter v. Bollinger, a 2003 case that permitted universities to consider an applicant’s race as part of a “holistic review.” Being considered with the UNC case is a parallel case against Harvard. The back-to-back oral arguments spanned five hours.  

At oral argument, Grutter got little love. The six conservative justices were skeptical of the precedent and the universities’ arguments. That skepticism reflects public sentiment. According to a recent Pew poll, nearly three-quarters of Americans oppose affirmative action.  

A problem for UNC dominated the argument. If diversity is UNC’s goal, how will it know when its mission is accomplished? Arguing for UNC, North Carolina Solicitor General Ryan Park couldn’t satisfy the justices. And the problem isn’t Park’s advocacy skills—Ryan’s one of the finest appellate advocates in our state. The problem is that there was no good answer. UNC would continue using affirmative action even if its demographics matched those of the state.  

But not everything was rosy for the challengers. There was much talk about race-neutral alternatives. Nine states have banned affirmative action, and they say they’ve achieved diversity without racial discrimination in college admissions.  

That puts everyone in an awkward position. If that many states can achieve diversity without considering race, then UNC and Harvard can, too. Then again, if the race-neutral alternatives just achieve the same result, why all the fuss about affirmative action?  

Here’s my prediction. The Court will overrule Grutter and ban racial preferences. Expect the next phase of this fight to be over race-neutral alternatives, as universities seek new ways to protect the old ways. Affirmative action is dead; long live affirmative action? 

The Independent State Legislature Doctrine 

The other case, Moore v. Harper, is a different animal because half the battle is understanding what’s at stake.  

Under the election clause of the federal constitution, the rules governing federal elections must “be prescribed in each State by the Legislature thereof.” Besides Congress, which can check the state legislatures, who or what else can restrain the legislatures when they pass laws for federal elections? 

The issue has some urgency, if we’re to avoid the Supreme Court deciding another presidential election, like Bush v. Gore. This issue has come up in the some of the last election cycles, as challengers argued that state supreme courts were rewriting the election rules, in violation of the election clause.  

Moore v. Harper arises from a 2022 opinion from the Supreme Court of North Carolina. In that case, our state Supreme Court held that our state constitution bans partisan gerrymandering.  

The legislators then took their case to the U.S. Supreme Court, arguing that the N.C. Supreme Court’s decision violates the federal election clause. At oral argument, the legislators presented a broad argument and a narrower one.  

The broad argument is that state constitutions cannot limit the power of state legislatures to set the rules for federal elections. The state legislatures are independent of state constitutional restrictions when they perform this federal function.  

Represented by the D.C. firm Cooper & Kirk, the legislators put most of their eggs in this basket. But this was a miscalculation. I couldn’t see five votes for the broad argument.  

The reception was warmer for the narrower argument: that the N.C. Supreme Court was legislating when it “discovered” a prohibition on partisan gerrymandering in the state constitution. If a state constitutional provision doesn’t provide judicially discoverable and manageable standards, it can’t be used to restrict a state legislature’s federal duty to draw federal districts. That’s the same reason the U.S. Supreme Court rejected partisan gerrymandering claims under the federal constitution in 2019. 

Still, it’s hard to count to five even for this narrower theory.  

Then again, if the Court waits, it may never need to answer the question. On February 3, 2023, the N.C. Supreme Court agreed to reconsider its prior opinion recognizing partisan gerrymandering claims. If our Court sides with the legislators, that may moot the appeal up in D.C. 

Expect opinions in both cases by June.   

Troy Shelton is an appellate partner in Raleigh at Fox Rothschild LLP. He partners with trial attorneys to win on appeal in state and federal courts.  

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