The North Carolina Supreme Court has issued just two damning rulings. This election law opinion shows how politics has infected the judiciary. The judges agreed to rehear the case, which is less than two months old, casting doubt on recent precedent. The only difference between now and then? Republican lawmakers now hold a majority seat on North Carolina’s high court because of last November’s election.
The most significant of these rulings concerned the reorganization of the Tar Heel state. In 2019, the US Supreme Court closed the door to the federal courts’ entry into the “political thicket” and overturned state redistricting plans on the grounds that these electoral maps were too partisan. So suffrage plaintiffs turned to state courts and invoked state constitutions, which provided greater protections to voters.
In February 2022, the North Carolina Supreme Court ruled that the state’s new congressional and state legislative maps violated the state constitution, which the court interpreted to prohibit extreme partisan gerrymandering. But, due to time constraints, the court allowed the maps to be used for the 2022 midterms. Then, in December 2022—after the election but before a new Republican majority was installed on the panel—the court ruled in a lengthy opinion that the North Carolina Senate map was still unconstitutional and ordered the Republican-controlled Legislature to redraw it. Meanwhile, the February ruling is under highly anticipated review at the US Supreme Court Moore v. Harper Cases that would address the so-called “independent state legislature” theory. (More on that later.)
But instead of following the Supreme Court’s order and drawing a new map or waiting for the US Supreme Court’s ruling, North Carolina chose to do so Moore, the Republican-controlled Legislature took a brazen step. It asked the North Carolina Supreme Court to rehear its December ruling, which also included the February 2022 decision. Republicans believed that, having won control of the state’s highest court in the midterms, they could count on a new, conservative justice to overturn earlier cases.
Their gambles paid off. North Carolina elects its justices party-wise, and last year the court was made up of four Democrats and three Republicans. But Republican judicial candidates won two seats in November, giving the court a 5-2 Republican tilt when new justices take their seats this winter. The 2022 verdicts were 4-3 decisions, with the majority all Democrats and all Republicans dissenting. So, it’s no surprise—now that the GOP controls the court—that the order to rehear the case was also along partisan lines, this time 5-2 in favor of Republicans. The rehearing is scheduled for next month, and while we don’t know how the court will rule, the decision to rehear the case is deeply troubling.
In their defense, North Carolina Republicans claim that prior rulings were biased and that the new state Supreme Court majority is simply addressing that bias. But that’s not how the judicial process is supposed to work. Judges should be guided by precedent and legal analysis. Deference to prior rulings gives the court legitimacy and conveys to the public that judicial decisions are based on reason, logic, and the rule of law—not the partisan affiliation of judges.
Democratic Justice Anita Earls, a former voting rights litigator, issued a strong dissent ordering a rehearing. He noted that there was no change in the legal issues or the evidence and the only difference was the partisan makeup of the court. He lamented, “Today’s display of raw bias not only calls into question the impartiality of the courts, but also erodes the idea that the judicial branch has the institutional capacity to be a constitutional and principled check on laws that violate human rights.”
The North Carolina High Court’s acquittal has national implications. If the court reverses its earlier rulings, then Moore v. Harper The case, pending in the US Supreme Court, can be rendered. The case addresses the independent state legislature theory, which proposes that a state constitution cannot constrain a state legislature when it sets federal election rules. This theory would give state legislatures free rein to impose restrictive voting laws even if they violated the state constitution. Rick Hassen, a professor of election law, notes that the case could have devastating consequences if the issue were to resurface in the context of a contested presidential election. Whatever the Supreme Court decides—and it should reject the independent state legislature theory—it should do so now, not during the hothouse of a contested presidential election. Bush vs. Gore 2000 contest or the violence of the 6 January uprising.
If that wasn’t bad enough, the North Carolina Supreme Court made more mischief out of the redistricting dispute with its second order, in which it decided a December ruling struck down the state’s voter ID law. Issued less than two months ago, the majority’s thorough 59-page opinion held that the state enacted its ID requirement with a discriminatory purpose to make it harder for minorities to vote, in violation of the state constitution. Again, nothing has changed except the composition of the court. But, less than two months after the decision was issued, the court said it would revisit that precedent.
To put this power grab into context, over the past 30 years, the North Carolina Supreme Court has agreed to hear only two of the 214 requests it has received. None of these cases had obvious bias. The court has now doubled the number of rehearing grants in just one freaking day.
Justice Earls, dissenting, noted that “our decisions are momentary, and our precedent is as enduring as the terms of the justices who sit on the bench.”
Many states elect their judges, some apparently based on partisanship. But when they are sworn in, judges should set aside their political allegiances and focus on the rule of law. A new North Carolina Supreme Court majority should never agree to rehear these cases. But when they revisit these disputes, judges should affirm prior court rulings to show fidelity to this core principle.
Judges should not be politicians in robes. Their only constituency should be the constitution and the rule of law.
