NC justices quickly revisit redistricting, voter ID
Published 11:55 pm Monday, March 13, 2023
By Gary D. Robertson
RALEIGH — The North Carolina Supreme Court is revisiting this week whether a previous combination of justices got it wrong three months ago when declaring that the legislature produced illegal district lines tainted by excess partisanship and a photo voter identification law infected with racial bias.
The rehearings Tuesday and Wednesday on cases already decided are exceedingly rare for the court — granted just two other times in the past 30 years, according to one justice. The justices’ decision to rehear arguments has fanned accusations that recent decisions on politically charged topics before the state’s highest court have been based upon which party has held the majority.
Last month, the court’s new 5-2 Republican majority agreed to take a second look at a pair of 4-3 party-line rulings that went against GOP legislators. At the time of the Dec. 16 decision, Democrats still held four seats on the court. The court’s majority flipped to Republicans in January after Trey Allen and Richard Dietz won November associate justice elections.
The court granted the requests of Republican legislative leaders who claim the prevailing redistricting and voter ID case opinions show the court “has overlooked or misapprehended” facts or laws.
The justices have no deadlines by which they must rule. Favorable new opinions for Republicans could let them redraw legislative and congressional maps for 2024 and beyond in the closely divided state with more favorable partisan tilts. While Republicans still control the state House and Senate, the congressional delegation is now 7-7 after two additional Democratic wins in November.
The Supreme Court also could reverse a trial court decision that declared a 2018 voter ID law unconstitutional, or it could direct an examination based on different standards.
“It’s not an overstatement to say that the very health of democracy in North Carolina is at stake when you are talking about voting rights and fair maps,” Bob Phillips, executive director of Common Cause North Carolina, said in an interview. Common Cause is a plaintiff in the redistricting case.
Senate leader Phil Berger, a named defendant in both cases, argues that actions by the court’s previous Democratic majority were unusual, with results that appear to have been “decided based on a particular outcome.” Republicans have lamented other 2022 decisions over a 2018 constitutional amendment and who can order spending on education improvements.
“I think that there are a lot of questions about whether or not the court did the right thing last year, and hopefully this court can rectify that,” Berger told reporters.
Associate Justice Anita Earls, in her dissent against rehearing the redistricting case, wrote that the GOP majority’s “display of raw partisanship (calls) into question the impartiality of the courts.”
On redistricting — set for Tuesday arguments — attorneys for the GOP argue the Democratic majority got it wrong when it struck down a state Senate map the legislature drew and upheld congressional boundaries drawn by trial judges.
At the heart of the redistricting issue is a February 2022 ruling that declared the state constitution outlawed extensive partisan gerrymandering and that Republicans also want tossed. The Democratic majority threw out legislative and congressional district lines lawmakers had drawn the previous fall, citing evidence the districts gave Republicans outsized electoral advantage compared to their voting power.
Phil Strach, a lawyer for the Republican lawmakers, wrote that legal precedent had affirmed that partisan decisions over redistricting rests with the General Assembly. And the criteria the majority suggested to determine fairness in district lines “are vague and unascertainable,” Strach added.
Lawyers for voters and interest groups that challenged the original maps said the basis for the court’s landmark precedents on partisan gerrymandering hasn’t changed since last year.
“There is no exception to the rule of stare decisis when a court changes composition,” plaintiffs’ attorney Stephen Feldman wrote, referring to the principle that judges base decisions upon earlier ones.
The redistricting arguments are getting attention nationally because of a related case in which legislative Republicans asked the U.S. Supreme Court to declare that the state justices improperly tossed out the congressional districts the General Assembly drew. The U.S. justices held oral arguments in December over the “independent state legislature” theory, which if agreed upon could give state lawmakers expansive powers over how federal elections are conducted.
The federal case could become moot if the state Supreme Court reinstates congressional lines the legislature drew. The U.S. Supreme Court asked attorneys to weigh in by next week on what effect the rehearing and “subsequent state court proceedings” would have on the case.
The voter ID case, to be heard Wednesday, will reconsider the ruling that upheld a trial court decision finding that Republicans passed the law in part to retain General Assembly control by discouraging Black Democrats from voting.
Attorneys for GOP legislators contend that ruling was based on a flawed presumption that since a federal appeals court determined a similar 2013 voter ID law was based on racial bias such discrimination also applied to the 2018 law.
A lawyer representing voters who sued wrote that judges could consider historical evidence about voter ID, balanced against the good-faith presumption.