Legislative leaders seek new NC Supreme Court review of redistricting, voter ID cases

Little more than one month after a lame-duck Democratic-majority N.C. Supreme Court ruled against Republican legislators on election maps and voter ID, lawmakers are asking for a do-over.

Petitions filed Friday at the state’s highest court ask for rehearings in both the Harper v. Hall and Holmes v. Moore cases.

The court handed down 4-3 party-line decisions in both cases on Dec. 16. The high court’s Democrats outvoted Republican colleagues in Harper to throw out the state Senate election map. In the Holmes case, Democratic justices ruled the state’s 2018 photo voter identification law unconstitutional.

Little more than two weeks after those decisions, Democratic Justices Robin Hudson and Sam “Jimmy” Ervin IV left the state Supreme Court. Republicans had swept November’s statewide judicial elections, and new Justices Trey Allen and Richard Dietz joined the court on Jan. 1.

In the new year, the state Supreme Court’s partisan split changed from 4-3 in favor of Democrats to 5-2 in favor of Republicans. Rehearings could lead to reversals of the court’s December rulings.

“The Constitution of North Carolina vests redistricting authority with ‘the General Assembly,’” wrote Phillip Strach, an attorney representing Republican legislative leaders in Harper v. Hall. “That power is subject to textually explicit limitations, including that electoral districts be of substantially equal population and that county lines not be crossed except where necessary to achieve that voting equality.”

“But, ‘[b]ecause redistricting is quintessentially a political process[,]’ these provisions can only be read to delegate the many political choices inherent in redistricting to the General Assembly,” Strach wrote. “Accordingly, this Court in 2015 concluded that so-called ‘political’ or ‘partisan’ gerrymandering claims are ‘not based upon a justiciable standard[.]’ The U.S. Supreme Court reached the same conclusion under the federal Constitution four years later.”

“In Harper v. Hall, a majority of this Court changed course, holding that political redistricting ‘violate[s] every individual voter’s fundamental right to vote on equal terms.’ This was the least plausible case in State history to announce that rule,” according to legislators’ petition.

The brief reminds the high court that Democrats engaged in gerrymandering throughout their 140 years of control of at least one chamber of the General Assembly, from 1870 to 2010.

“By contrast, the General Assembly in 2021 adopted criteria that excluded the use of political data in line-drawing, no partisan data was loaded into the redistricting software, two members of the General Assembly testified that partisan considerations did not enter the line-drawing, and the trial record contains no contrary direct evidence of partisan intent,” Strach wrote.

When the Supreme Court’s four Democratic justices threw out state House, state Senate, and congressional maps in February 2022, a ruling called Harper I, they released an opinion “long in idealistic verbiage” but “short in concrete guidance” for lawmakers attempting to draw constitutionally acceptable maps, according to the petition.

December’s decision in the case, Harper II, led to just one of three replacement, or remedial maps, surviving the court’s scrutiny. That was a state House map that had won bipartisan support in the General Assembly. The Democrat-dominated court rejected two others, for state Senate and Congress, despite lawmakers’ attempts to apply the same court guidance to all three maps.

“That result is simply perplexing,” Strach wrote. “Only the four members of the Harper II majority can or will know a gerrymander when they see it; everyone else must await their Delphic pronouncement.”

“The Harper experiment has failed, and it is time for this Court to recognize that, correct its errors, and return to the Constitution and this State’s traditional modes of interpretation,” Strach wrote. “This rehearing Petition gives this Court a much needed opportunity to address the root of the problem: Harper I was based on profoundly flawed legal principles. This Court should withdraw its Harper II opinion, and it should overrule Harper I. This Court should also declare that the General Assembly is now able to exercise its redistricting power unencumbered by the Harper Court’s shortsighted judicial takeover.”

In the voter ID case, legislators also petition the state Supreme Court to reconsider its month-old ruling. That ruling threw out a 2018 law that started the legislative process as Senate Bill 824.

“The majority’s conclusion that the General Assembly enacted S.B. 824 to entrench Republicans by targeting African Americans is without foundation in competent evidence and constructed with legal error,” wrote attorney Nicole Moss. “Most egregiously, the majority repeated the mistake of the trial court by failing to accord the General Assembly the presumption of good faith.”

Supreme Court Democrats instead linked the 2018 law to an earlier voter ID law struck down by a federal Appeals Court, Moss wrote. That decision, “like an anchor around the neck of the General Assembly, mak[es] it all but impossible for it to enact a photo voter ID law that would pass constitutional muster. If Holmes is left uncorrected, … the General Assembly will be hamstrung in its constitutionally required obligations going forward from a fundamentally flawed decision.”

Regardless of the Supreme Court’s response to the Harper petition, state lawmakers plan to redraw the congressional election map for 2024. A rehearing could determine whether the legislature will redraw maps for its own elections.

The N.C. Constitution requires voter ID, though that provision is the subject of a separate legal challenge in the case titled N.C. NAACP v. Moore. If the constitutional voter ID requirement stands, lawmakers would need to prevail in a Holmes v. Moore rehearing or approve a new voter ID law.

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