@NCCapitol

'It will irreparably damage the legitimacy and reputation of NC's highest court': Rehearings to begin Tuesday

North Carolina voters put Republicans in control of the state Supreme Court. Now the court's new GOP majority is moving quickly to rehear election law cases Republicans had previously lost. The court's decisions could have a far-reaching impact on future elections.

Posted Updated
Voter ID
By
Will Doran
, WRAL state government reporter

This week, the state Supreme Court will rehear oral arguments in two voting rights cases. The court’s decisions could have major ramifications for the 2024 elections — and could set the tone for just how aggressive the court’s new GOP majority plans to be in future cases with major political implications.

One case questions whether the legislature should have any oversight from the courts on drawing voting districts. The other case deals with whether people should have to show photo identification to vote — an idea, popular with voters statewide, that has been ruled unconstitutional for racial discrimination multiple times.

Whatever decisions the court issues will have immediate ramifications for the 2024 elections and beyond. More broadly, the cases also raise bigger questions of whether it’s possible to elect judges in partisan elections yet expect them to set politics aside once they join the court.

“The method by which the court has decided to take these cases back up has really left a lot of people questioning, ‘Is there anything like settled law in North Carolina?’” said Michael Bitzer, a political science professor at Catawba College who recently wrote a book on the state’s history of redistricting and gerrymandering.

The court’s new Republican majority faces criticism now for using a rare procedural move to rehear the cases, in what many see as a purely political move.

Before that, however, the court’s Democratic majority faced the same sort of accusations. That court had also used a rare procedural move — not to rehear cases, but to speed them up — which cut months, maybe even years off the normal timeline and allowed the court to rule on those cases while Democrats still controlled the majority.

Both cases the Republican-led court is now rehearing were among the handful of cases sped up by the Democrat-led court last year.

Senate leader Phil Berger said he and his fellow Republican lawmakers asked the Supreme Court to rehear both cases because they believe the rulings were not only wrong but also politically motivated.

“I don’t think there’s any question that if you look at how the decisions were made in a whole raft of cases toward the end of last year, the only way to reconcile those cases is that they really weren't decided based on the law, consistently,” he said. “They were decided based on a particular outcome. And I think the court has the right to reconsider those things.”

Politics at the Supreme Court

State courts have become increasingly politicized over the past few decades, something many observers blame on the tens of millions of dollars national political groups have spent to influence who sits on the state’s highest court.

Many of those big spenders are focused mainly on redistricting. North Carolina is one of the states large enough, and with enough political diversity, that how the districts here are drawn can go a long way toward deciding whether Democrats or Republicans control the U.S. House of Representatives.

The state has 14 seats in the House. Court filings showed it's possible to draw maps that would yield any result from an 8-6 Democratic advantage to an 11-3 Republican advantage.

While the new Republican majority on the court was widely expected to be more lenient toward pro-Republican gerrymanders in future lawsuits, the court caught many legal and political observers by surprise in announcing it would go a step further and re-do the voter ID and redistricting cases altogether.

The decision to rehear a Supreme Court case has rarely happened in all of state history and, critics say, never on a political lawsuit where the only change seems to be in the court’s own internal politics.

“If the rule of law means anything, it means that the law does not swing wildly based on the composition of this court,” Democratic Gov. Roy Cooper and Attorney General Josh Stein wrote in a proposed brief for the new redistricting case, which the Supreme Court declined to allow. “... If a decision of such consequence could be withdrawn merely based on a change in the court’s membership, it would fatally undermine this court’s standing as the independent arbiter of our state’s constitutional disputes.”

Because of the way elections for the seven-member court are staggered, and since justices serve lengthy eight-year terms, it will likely be years before Democrats have a chance to win back control of the court.

How the general public views the coming years of GOP control might depend, at least in part, on how aggressively the court acts now, Bitzer said.

“It’s going to be incumbent on the Republican majority to make it very clear as to why, in their final decisions, they are revisiting these cases,” he said.

When the cases originally ended last year, Republican Chief Justice Paul Newby wrote a scathing dissent in the redistricting case, accusing the Democratic justices of making up rules and being motived by politics to “disrespect another branch of government.”

In the voter ID case, a similarly cutting dissent was authored by Republican Justice Phil Berger Jr., the son of the state Senate leader who is also a lead defendant in that case. He wrote that there was no proof his father or any of the bill’s other supporters had any “intent to discriminate” against Black voters, or any other group of people, despite what the majority opinion found.

The redistricting case, Harper v. Hall, is scheduled to be reheard Tuesday. The voter ID case, Holmes v. Moore, will be reheard Wednesday.

Before the justices kick off the arguments, pro-democracy protesters will gather across the street from the Supreme Court in downtown Raleigh Tuesday morning to decry what they call an abuse of power in both the judicial and legislative branches.

However the court ends up ruling in each case, the decisions will likely come down this year or early next year. So they’d likely apply to the 2024 presidential election as well as all future elections.

Beyond the question of how elections will be affected, the cases also raise procedural questions: Can they even do this? And what recourse do losing parties have, if any?

And then there are the bigger philosophical issues: How much does precedent matter anymore, if it’s possible for the Supreme Court to simply re-do important cases? How far back into the past can the justices reach to do that? And what happens the next time the majority changes hands?

‘Democrats will come to regret it’

When the court struck down North Carolina’s 2018 voter photo ID law as unconstitutional last year, the justices ruled that the evidence showed Republican lawmakers were “motivated by a racially discriminatory purpose” when they wrote the law.

In the other case, the court threw out the state’s proposed political districts for the coming decade. The maps were so gerrymandered to give Republican candidates a disproportionate edge in elections, the court ruled, that they violated the state constitution’s guarantee of fair elections.

Both decisions could now be undone, depending on what the court decides in the next few days.

In both cases — as in numerous other high-profile political lawsuits over the past two years — the rulings were 4-3 along party lines. All the Democratic justices on the court ruled against the legislature, and all the Republicans dissented.

At the time, GOP leaders cried foul and accused the court of engaging in credibility-destroying political activism. Republican state Sen. Ralph Hise, a top redistricting official, wrote in a press release when the maps were first ruled unconstitutional a year ago that the court was becoming a purely political institution controlled by outside money.

And he warned that both sides could play that game.

“This perverse precedent, once set, will be nearly impossible to unwind, as monied interests line up to buy their own justices to set law favorable to them,” Hise said. “I’m certain Democrats will come to regret it.”

The redistricting decision came down in February 2022, just 10 months before the midterm elections offered Republicans the chance to take back control of the court for the first time since 2016. And almost immediately, national Republican redistricting groups began funneling millions of dollars into the two Supreme Court races on the ballot. In the end, Republicans flipped both seats and will now have a majority until at least 2028 on a court in a state where Democratic and unaffiliated voters combined far outnumber registered Republicans.

That new GOP majority took power in January and quickly announced they’d rehear both cases — both announcements were 5-2 rulings, along party lines — proving Hise prescient as Democrats erupted in outrage at the news.

“If the Republican majority decides to reverse a decision of its own court, made only months ago, it will be an action that is so plainly political and so grossly at odds with precedent, that it will irreparably damage the legitimacy and reputation of North Carolina’s highest court,” former U.S. Attorney General Eric Holder wrote in a press release at the time.

Holder’s group, the National Democratic Redistricting Fund, has funded multiple anti-gerrymandering lawsuits in North Carolina in recent years — and also gave $250,000 to the state Democratic Party when it flipped a seat on the Supreme Court in 2018.

SCOTUS now involved

The decision to rehear the gerrymandering case reverberated all the way to Washington, D.C. The case underpins an appeal before the U.S. Supreme Court, which noted the state court’s do-over decision in a recent order.

The case before the nation’s highest court, Moore v. Harper, began when state Republican lawmakers lost the gerrymandering case and asked the U.S. Supreme Court to step in. They’re asking the court to greenlight a controversial legal theory that state-level judges anywhere in the country can no longer rule election laws unconstitutional, at least for federal elections.

But if the state Supreme Court overturns its prior ruling and ends up ruling in favor of the legislature after all, does that put an end to the U.S. Supreme Court version of the case? Both sides have been ordered to answer that very question.

Last week, North Carolina House Speaker Tim Moore told WRAL News he wasn’t worried that the case, named for him as a lead petitioner, will go away even if Republicans also end up winning the state-level case on the redo. He noted that the case would apply nationally, not just locally.

“The totality of those just terrible rulings are enough where the U.S. Supreme Court said they've got to get involved and they've got to take the case up,” Moore said.

Rehearing is rare

It’s not guaranteed that the state court will undo both of the rulings.

The decision to rehear a case at all is incredibly rare — until now it had only happened twice in 30 years — but the few examples that do exist show the state court can come to the same conclusion, and just uses the rehearing as an opportunity to tweak how its opinion was written.

According to new briefings in the cases, the procedure historically hasn’t been used to undo cases that new justices might disagree with. Instead it has been more narrowly focused on incidents where the justices realized after the fact that they forgot to cite an important precedent, or otherwise found new facts to highlight.

Bitzer warned that if the court decides to completely undo the voter ID and redistricting rulings, the justices risk setting a new precedent of their own.

“If at some point in the future Democrats get majority control of the Supreme Court, that means they are able to use this tactic as well — and potentially revisit past cases that they didn’t like the outcomes on,” he said.

Some of the state’s top Democratic leaders took that warning a step further. In a legal brief that they attempted to submit in the case, before the court denied it last week, Cooper and Stein urged the court not to burn its reputation on undoing these rulings.

Cooper’s remarks became more pointed after the court denied his and Stein’s brief.

“With each passing day, this partisan Supreme Court shows that it cares only about the views of Republican legislators. That comes at the cost of voting rights, school funding, and—ultimately—our democracy,” he wrote on Twitter.

Republican lawmakers argued the exact opposite. It’s the court’s duty, they argued, to come in now that there’s no longer a Democratic majority, and undo the original decision. That decision was the one that was politically motivated, they wrote, not any potential action to undo it.

They noted in one court filing — quoting Newby’s dissent verbatim — that “Democrats engaged in gerrymandering when they controlled our General Assembly,” yet the court never ruled partisan gerrymandering unconstitutional back then.

Voter ID case

The court ruled on two voter ID cases last year, but now the court is only rehearing one of them for now.

The one that’s being reheard ruled the law unconstitutional. The law itself was authorized by a separate state constitutional amendment that voters passed in 2018. And in a different case, the court ruled — again, in a 4-3 party line decision when Democrats were in power — that the amendment likely should never have been allowed on the ballot in the first place. It likely only had the required amount of support in the legislature, the court ruled, because of GOP lawmakers who had been elected using unconstitutional, racially gerrymandered districts.

The Democratic justices summed up the ruling like so: Republicans used redistricting to dilute Black voters’ political power. That led to the election of a legislature that was skewed so far to the right of what voters actually wanted, that it could no longer claim to legitimately represent the state. Then, that new legislature used its ill-gotten power to pass a voter ID law aimed at further suppressing minority turnout.

“It's the most ridiculous decision that I've ever seen,” Moore said in an interview.

The state Supreme Court didn’t issue a final ruling on that case, however. The judges ruled that that’s what likely happened, but they sent it back to a trial court to dig into the math and confirm it.

So the new Republican-majority Supreme Court could still get a crack at stopping that ruling without needing to resort to the same procedural move that it’s now using for the other voter ID case, which focuses on the law itself rather than the broader amendment.

In asking the Supreme Court to rehear that case, Republicans argue that the voter ID law can’t be racist because one Black legislator — former Charlotte Sen. Joel Ford, who had just lost the Democratic primary — voted for it.

In their petition asking the court to rehear the case, they urged the justices to consider the damage done to the legislature’s reputation.

“It is a serious matter for legislators to be accused of racial discrimination, and more serious still for a court to agree,” they wrote. “Legislative good faith must be presumed in order to protect the people’s representatives from being improperly tarnished for their service to the State.”