N.C. legislative leaders urge the state Supreme Court to reject the latest arguments from a left-of-center activist group in a legal dispute over state election maps. Lawmakers are seeking a rehearing of the case called Harper v. Hall.
State Supreme Court rules allow a party to seek a rehearing within 15 days after the court issues its “mandate” in a case. Lawmakers met that deadline. The same rules block any other parties in the case from responding to the rehearing petition.
“In spite of that prohibition, Common Cause filed a response styled as a motion, in a flagrant attempt to circumvent the limitations imposed by [the rules],” wrote attorney Phillip Strach, who represents legislative leaders. “No other Plaintiff-Appellants joined this motion. Regardless of any outside-the-courtroom purpose its filing is intended to serve, if Common Cause’s tactic is permitted, then the express prohibition … would be a dead letter.”
Strach labels the Common Cause motion “improper.” It’s also “meritless,” according to Friday’s filing.
“Common Cause argues that Legislative Defendants’ Petition fails to identify points of fact or law that this Court ‘overlooked or misapprehended’ in Harper II,” Strach wrote. “But the Petition devotes seven pages to points of both fact and law that Harper II misapprehended and even some it overlooked. Far from being sanctionable, the Petition is meritorious.”
Legislative leaders take aim at Common Cause’s brief. “Common Cause cites six different cases in its motion arguing that all of them support a decision by this Court denying rehearing,” Strach wrote. “Common Cause fails to mention that rehearing was actually granted by this Court in all six cases.”
“In their contrived effort to paint Legislative Defendants’ Petition as ‘frivolous,’ Common Cause fails to address or distinguish several cases directly on point cited by Legislative Defendants,” Strach added.
Of particular interest was the state Supreme Court’s decision to rehear a 1986 case called Alford v. Shaw. “Following the departure from the Court of two justices who were in the majority of the original holding in Alford, the Court reheard the case and withdrew its prior decision,” Strach wrote. “In fact, Justice Martin, a former dissenter, authored the new majority opinion. Thus, the precedent set by Alford is that it is entirely proper for this Court to grant a petition for rehearing and withdraw its prior decision when a new majority of the Court finds that the prior holding was based upon erroneous points of law.”
As in Alford, two justices have left the Supreme Court since its decision in Harper. Those justices, both Democrats, have been replaced by Republicans. The original Harper v. Hall rulings produced party-line 4-3 splits, with Democrats holding the majority. The current court has a 5-2 Republican majority.
Strach labels “ironic” the Common Cause argument “that petitions for rehearing should not be granted unless the Court’s original opinion was ‘decided hastily.’”
“But, this Court will be hard pressed to find any decisions in its history that were more hastily decided than Harper I and Harper II,” he wrote. Harper I was the February 2022 decision striking down state House, Senate, and congressional election maps as unconstitutional partisan gerrymanders. Harper II, decided on Dec. 16, confirmed a trial court’s decision to toss out a second congressional election map. Harper II also rejected the state Senate map used for 2022 elections.
“As this Court is well aware, the Court previously entered a preliminary injunction during the Harper I litigation without making any of the findings required,” Strach wrote. “The Court is also aware that in its preliminary injunction ruling, it placed this case on an unprecedented fast track thereby effectively denying the Legislative Defendants a reasonable opportunity to conduct full discovery, including discovery into Plaintiffs’ experts who had months to prepare reports.”
“Finally, the Court is well aware that it expedited its resolution of Harper II in a manner that again may be unprecedented,” Strach added. “The Harper II majority adopted these extraordinary actions despite the fact that no congressional or legislative elections are scheduled to take place in 2023.”
“We sincerely doubt that Common Cause or the Court can identify any other decisions that were more ‘hastily’ decided than Harper I and Harper II,” Strach wrote.
Lawmakers remind the state Supreme Court that they seek a rehearing to correct a bad decision.
“The erroneous legal decision in Harper II is based entirely upon the legally erroneous decision in Harper I and this Court’s application of that erroneous standard in Harper II,” Strach wrote. “An opinion by this Court granting rehearing in Harper II, and any subsequent ruling withdrawing the Harper II opinion and judgment, also means that the legal standards established in Harper I must be overruled, even though the actual judgment entered in that case is no longer subject to modification or review.”
“Common Cause cites no authority for its perplexing view that this Court lacks the authority to overrule its own precedent,” he added. “Legislative Defendants demonstrated that this Court does have that authority and has often used it.”
The state Supreme Court must decide by Feb. 19 whether to rehear Harper v. Hall. That’s also the deadline for the court to decide whether to rehear Holmes v. Moore. In that case, the same 4-3 party-line split emerged as Supreme Court Democrats ruled North Carolina’s 2018 voter identification law unconstitutional.
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