GOP-controlled North Carolina Supreme Court reverses rulings that struck down partisan gerrymanders by Republican lawmakers
By Tierney Sneed, Ariane de Vogue and Ethan Cohen, CNN
The Republican-controlled North Carolina Supreme Court — reversing previous rulings that were handed down when the state Supreme Court leaned Democratic — said Friday that North Carolina’s constitution gave state courts no role to play in policing partisan gerrymanders.
The ruling is a victory for the GOP state legislature, which brought the case back to the state Supreme Court after Republicans flipped seats on the court in the midterms, giving them the majority. The GOP legislature had also taken the case to the US Supreme Court — where Republicans were pushing an aggressive theory that would limit the role state courts can play in election disputes — and it is unclear whether Friday’s ruling prompts the US Supreme Court to dismiss the case that is before it.
“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text,” the new opinion from the North Carolina court said. “Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch. Furthermore, were this Court to create such a limitation, there is no judicially discoverable or manageable standard for adjudicating such claims.”
The 5-2 opinion was written by Chief Justice Paul Newby, who was joined by the four other Republican members of the court. Democratic Justice Anita Earls wrote a dissent joined by Justice Michael Morgan, a fellow Democrat.
The ruling is a major loss for the voting rights groups that had challenged the congressional plan that had been drawn by the Republican legislature after the 2020 census, as the ruling will prevent them from going to state court in the future bring claims of extreme partisan gerrymandering against North Carolina maps.
Justice Newby’s opinion said allowing courts to get involved in disputes over political gerrymandering “forces courts to take sides in political battles and undermines public trust and confidence in the judiciary.”
“Choosing political winners and losers creates a perception that courts are another political branch. The people did not intend their courts to serve as the public square for policy debates and political decisions,” he said.
Earls’ dissent was a biting rebuke to how the court’s conservatives were fashioning their ruling as taking the state judiciary out of politics.
She said that the GOP majority’s efforts “to downplay the practice” of extreme partisan gerrymandering “do not erase its consequences and the public will not be gaslighted.”
“Let there be no illusions about what motivates the majority’s decision to rewrite this Court’s precedent,” she wrote. “Today’s result was preordained on 8 November 2022, when two new members of this Court were elected to establish this Court’s conservative majority.”
One of the voting rights groups that brought the original challenge to the GOP-drawn map said Friday’s ruling was “one of the gravest assaults on democracy ever in North Carolina.”
“Now, extreme partisan gerrymandering has been legalized and it will be weaponized against voters. That’s wrong,” said Bob Phillips, executive director of Common Cause North Carolina. “Undoubtedly, the justices who wrote this shameful decision know it’s wrong, as do the self-serving legislators who embrace gerrymandering.”
Newby defended the maneuver to rehear the case, pointing to other cases that were reheard with “a change in personnel on the Court who provide afresh legal perspective.”
Making the petition for rehearing “particularly appropriate,” Newby argued, was that when Democrats controlled the court at an earlier stage of the litigation, they expedited their review of the case over the “strong dissent” of the then-Republican majority.
The new opinion from the North Carolina high court pointed to the 2019 ruling from the US Supreme Court that said that federal courts could not rein in extreme gerrymandering on partisan grounds. The US Supreme Court’s ruling meant that redistricting reformers were going to have to rely on state constitutions to challenge partisan gerrymanders. But now, the GOP-controlled state Supreme Court has foreclosed that option in North Carolina, opening the door for Republican lawmakers there to go all in on partisan gerrymandering and entrenching their advantages in the North Carolina House and Senate while cushioning GOP margins in the US House of Representatives.
The North Carolina Republican Party cheered the ruling on Friday.
“The People of North Carolina rejected the blatant activism of the progressive judges by electing a strong majority of conservative Justices,” North Carolina GOP Chairman Michael Whatley said in a statement. These rulings are a big step toward restoring respect for the Constitution and taking politics out of the courtroom.”
Next steps in US Supreme Court case unclear
The current US Supreme Court had before it an appeal of the North Carolina case that was brought to it by the Republican legislature, before the GOP won control of the state Supreme Court in November.
The case had captured the nation’s attention, because Republican lawmakers in North Carolina were asking the justices to adopt a long dormant legal theory and hold that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections. The doctrine — called the Independent State Legislature theory — was pushed by conservatives and supporters of former President Donald Trump after the 2020 election. The US Supreme Court heard arguments in the case in December but had not issued a decision.
Once the two new North Carolina Supreme Court justices were sworn in this year — giving Republicans a 5-2 majority — state Republicans asked the court in February to reconsider the rulings that had struck down their maps.
That development prompted the US Supreme Court to ask the parties on both sides to explain whether the justices still had the authority to hear the case or whether it should be dismissed. Central to the question was whether the state court has issued a “final judgment” in the case, clearing the way for US Supreme Court review.
In those filings, there was disagreement among the Republicans’ opponents in the case — which included voting rights groups, the US Justice Department and the North Carolina Justice Department, which is under state Democratic Attorney General Josh Stein — over how the US Supreme Court should approach the issue.
It may take some time for the US Supreme Court to say what it intends to do and whether it will dismiss the case before it. If the justices decide the case is now moot, it will allow them to sidestep weighing in on the Independent State Legislature theory at least for some time. A similar dispute, arising from Ohio, has already been appealed to the US Supreme Court and could give the justices, if they decided to take up that case, another opportunity to consider the doctrine.
It’s likely that the US Supreme Court does not say anything about what it will do next in the North Carolina case until, at the earliest, May 11, the next day it has scheduled for releasing opinions. But it’s also possible that the Supreme Court waits even longer than that, up until the end of the term this summer.
Ruling against voter ID law also reversed
The court also reversed its decision to block the state’s 2018 voter ID law.
While the court had held last year that the law was “motivated by a racially discriminatory purpose,” the new Republican majority found that opponents of the law couldn’t prove that it “was enacted with discriminatory intent or that the law actually produces a meaningful disparate impact along racial lines.”
Like in the redistricting decision, the majority framed its decision as a return to a less politicized court.
“The people of North Carolina overwhelmingly support voter identification and other efforts to promote greater integrity and confidence in our elections,” Justice Phil Berger Jr., the son of the state Senate president pro-tempore, wrote for the majority.
“Subjective tests and judicial sleight of hand have systematically thwarted the will of the people and the intent of the legislature,” Berger continued. “But no court exists for the vindication of political interests, and judges exceed constitutional boundaries when they act as a super-legislature. This Court has traditionally stood against the waves of partisan rulings in favor of the fundamental principle of equality under the law.”
Morgan took issue with that framing in his dissent, which Earls joined, writing that the new Republican majority had “emboldened themselves to infuse partisan politics brazenly into the outcome of the present case.”
Morgan criticized the decision to overturn the court’s precedent, writing that, “every presumption is construed in favor of the Court’s previous holding” and that they should overrule themselves only if “the previous majority clearly mistook some important fact or overlooked an express and weighty authority in contradiction to its prior ruling.”
“Rather than abide by that lofty philosophy which has always permeated the fabric of this Court, the majority instead prefers to dismember both state and federal jurisprudence in order to demonstrate its alacrity to brandish its audacity to achieve its purposes, all while claiming to act in the name of judicial restraint,” Morgan wrote.
Additionally, the North Carolina state Supreme Court released Friday a ruling in a case concerning felon voting rights. The 5-2 conservative majority reversed a lower court ruling that said felons, once they had finished their prison sentences, could regain the right to vote even if they had not finished their probation or paid off the fines and fees associated with their punishment.
“This is a trio of tragic rulings for voters across our state brought to us by the radical Republican majority in control of our courts that are specifically designed to silence voters, especially Black and Brown voters,” North Carolina Democratic Party Chair Anderson Clayton said in a statement. “We should be making it easier to vote — not harder.”
The leader of the GOP-controlled North Carolina Senate celebrated the three opinions, which all broke in his side’s favor.
“For years plaintiffs and activist courts have manipulated our Constitution to achieve policy outcomes that could not be won at the ballot box. Today’s rulings affirm that our Constitution cannot be exploited to fit the political whims of left-wing Democrats,” Senate Leader Phil Berger, who was a party in all three cases, said.
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CNN’s Diane Gallagher contributed to this story.
