State Supreme Court revisits redistricting rulings it issued in just months ago

A Democratic court majority struck down maps as unconstitutional partisan gerrymanders, but a new GOP majority has been asked to do an about-face.

State Republican legislators Tuesday brought their argument that courts cannot bar partisan redistricting to a friendlier state Supreme Court than the one that ruled against them last year.

If Republican legislators secure all they want from the high court, they will be able to redraw state House and Senate districts, in addition to congressional voting districts, for the 2024 election without concern that state courts will find them unconstitutionally partisan.

A decision for GOP legislators could imperil several Democrats who won congressional seats last year and could result in even wider state House and Senate Republican majorities. Currently, the state delegation to the U.S. House is split 7-7 between Republicans and Democrats. Republicans enjoy a 30-20 majority in the state Senate and a 71-49 advantage in the state House.

Oral arguments highlight partisan divisions

A blanket of partisanship hung over Tuesday’s proceedings, as Republicans asked the majority-Republican court to reverse rulings issued late last year when Democratic members made up a majority.

“What has happened over the course of the last 88 days since we issued our opinion in this case that would mandate and compel a different result?” Associate Justice Mike Morgan, a Democrat, asked Republican lawyer Phil Strach.

The previous court’s opinion in December throwing out the Senate district plan demonstrated the court could not apply consistent measures of partisanship, Strach replied.

Voting rights groups and voters backed by the National Redistricting Foundation sued over the redistricting plans in 2021.

A 4-3 Democratic majority ruled in February 2022 that the House, Senate and congressional districts were extreme partisan gerrymanders that violated several provisions of the state constitution. The court ordered all three redrawn.

The court’s Democratic 4-3 majority followed up in December with a ruling that the redrawn state Senate map used in the 2022 elections was unconstitutionally partisan.

But Republicans swept a pair of races for the Supreme Court in those same elections, and soon thereafter, Justices Trey Allen and Richard Dietz joined Chief Justice Paul Newby and Justices Phil Berger Jr. and Tamara Barringer to form a new 5-2 GOP majority.

In January, just a month after the previous court struck down the Senate map, GOP legislative leaders asked the newly configured court to rehear the case. They want the court to withdraw the December opinion focused on the Senate districts and override the February 2022 court decision.

Republican lawmakers contend, and Republican justices agreed in their dissents last year, that questions of redistricting with partisan intent are outside the purview of courts.

In the rehearing, voting rights groups that prevailed last year asked the justices to leave the previous rulings alone. They cited the legal principle which holds that courts should stand by previous decisions when the facts haven’t changed.

Associate Justice Anita Earls, a Democrat, noted that the trial court found that redistricting plans the legislature drew in 2021 “resiliently safeguarded the electoral advantage for Republicans,” were more extremely partisan than 99.9% of any other plans that could be drawn, and would deliver Republican majorities in the legislature and the state congressional delegation even if the state swung decisively towards Democrats.

“You’re asking us to say that in spite of those facts, the North Carolina constitution offers no protection to voters,” Earls said.

Strach replied: “The North Carolina constitution does not speak to partisanship in redistricting. Yes, Your Honor.”

The Republicans’ claim that redistricting is immune from judicial review “fundamentally misunderstands the judiciary’s role and the separation of powers under the Constitution,” the voting rights groups’ lawyers wrote in their brief.

Sam Hirsch, a lawyer representing the NC League of Conservation Voters, told the court that state lawmakers shouldn’t be allowed to draw new legislative maps.

Implications for other federal and state court cases

After Republicans lost the first redistricting case last year, they appealed to the U.S. Supreme Court. They argued that the Elections Clause in the U.S. Constitution says laws that legislatures pass about federal elections, such as congressional redistricting, are beyond the reach of state courts. The U.S. Supreme Court heard the nationally significant case, called Moore vs. Harper, in December. It has not yet ruled.

At Tuesday’s hearing, Dietz asked whether that appeal was properly before the U.S. Supreme Court because lawyers were still in state court arguing about the decision.

He also questioned whether his court “had jurisdiction to keep hearing things in this case.”

Former U.S. Attorney General Eric Holder, chairman of the National Democratic Redistricting Committee, said in a statement Tuesday that the state Supreme Court should adhere to legal principles and demonstrate that it is above partisanship.

“Given that the facts, the law, and controlling precedent are on the side of fair maps, this should be an easy decision for a Court that adheres to traditional legal and judicial norms,” Holder said in a statement.

At a rally before the court hearing, speeches addressed all the cases that are in peril in the majority-Republican court: gerrymandering, voter ID, Leandro education funding and voting rights for people on parole or probation for a felony.

Cases on voting rights and education funding do not need to be reheard, said Marcus Bass of the NC Black Alliance.

“Cheating is usually done behind our backs,” he said. “They are attempting to do this in front of our face.”

Christina Stableford of Raleigh carried to the rally a sign mimicking a theater marquee advertising a gerrymandering-themed show. She said it is a recycled sign she’s brought to other events that seek to halt the erosion of voting rights.

“I’m getting sick of this stuff,” she said. “What’s coming now is like a deathblow to democracy.”