North Carolinians and Legal Experts React to the State Court’s Unprecedented Move

In December 2022, the North Carolina Supreme Court issued decisions in two important cases. In Harper v. Hall, the state’s highest court ruled that North Carolina’s revised state Senate map used in the 2022 elections violated the state constitution but upheld the revised state House and congressional maps. This was the second time the court ruled on the constitutionality of maps drawn with 2020 census data — back in February, the court struck down all three maps passed by the Republican-controlled Legislature for being unconstitutional gerrymanders, a ruling that led to the December decision as well as a separate U.S. Supreme Court case. In the other case Holmes v. Moore, the court found that a photo ID law passed in 2017 also violates the state constitution. Both decisions were hailed as victories for voting rights in the Tar Heel State.

Mere weeks later after its December ruling, however, the court’s newly elected Republican majority agreed, at the request of Republican legislators, to rehear both decisions. Only a few months after issuing opinions, the court — which flipped from a 4-3 Democratic majority to a 5-2 Republican majority in the 2022 midterm elections — could end up reversing itself and reaching the opposite conclusions in the two cases, specifically that partisan gerrymanders do not violate the state constitution and the ID law can remain in place. As Marc Elias wrote in reaction to this unprecedented move, the court’s decision to rehear is the North Carolina Republicans’ latest gambit in their attempt to wield unfettered power in the state. But the decision also poses direct harms for North Carolinians and could reverberate across the country via a pending U.S. Supreme Court case.

The North Carolina Supreme Court’s decision is unprecedented and could directly harm North Carolinians, experts say.

Reaction in the Tar Heel State focused on how the court’s move was not only unprecedented, but also demonstrates the increasing politicization of the judiciary. The remaining two Democratic justices spent much of their dissents from the decision to rehear the case underscoring this point. Justice Anita Earls begins her dissent in the decision to rehear Harper by noting that the order “fails to acknowledge the radical break with 205 years of history.” She points out that since 1993, a total of 214 petitions for rehearing have been filed, yet only two have been granted.

The only thing that has changed is the political composition of the Court,” she writes, ending her dissent with an ominous warning for North Carolinians. “[T]his Court took just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench…this Court’s decision today is an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially.’

Justice Anita Earls

Similarly, Justice Richard Morgan’s dissent in the decision to rehear Holmes, the photo ID case, points out that “[t]here is no aspect of the case at issue…which meets the historically and purposefully high standards to qualify for” rehearing. He worries that the decision “may serve to foment concerns that North Carolina’s highest state court is engaged in the determination of challenging and legitimate legal disputes with a perceived desire to reach outcomes which are inconsistent with this Court’s well-established principles of adherence to…the rule of law.”

Other prominent North Carolinians denounced the decision to rehear both cases. In a statement, North Carolina Gov. Roy Cooper (D) said the move justified the “fear that this Republican Supreme Court would give in to all the demands of the Republican legislature regardless of the constitution, precedent or judicial independence.” He also linked the decision to years-long efforts by Republicans to take control of the state courts, beginning with 2016 and 2017 laws that require judges to run for election with partisan labels. Joshua Douglas, a professor at the University of Kentucky College of Law agreed with Cooper that “[t]he whole thing simply smells of partisanship.”

Representatives of Common Cause North Carolina, one of the plaintiffs in Harper, called the rehearings “an extreme departure from precedent” and decried that “politicians in the legislature refuse to respect our rights as they seek power to illegally rig our elections.” U.S. Rep. Deborah Ross (D-N.C.), a member of the House Judiciary Committee, argued that reversing the decisions “would silence the voices of thousands of voters, jeopardizing our democracy.”

The reactions illustrate how dangerous the court’s decision could be for North Carolinians. Not only could a restrictive photo ID law and harmful gerrymanders be reinstated, but the move could also undermine the legitimacy of the state courts themselves.

The rehearing may impact a pending U.S. Supreme Court case on the independent state legislature theory.

Legal scholars largely focused on a different angle: what the implications of the rehearing could mean for the landmark U.S. Supreme Court case Moore v. Harper. In Moore, the Republican legislators appealed the state Supreme Court’s February 2022 decision striking down the congressional map and replacing it with a court-imposed map to the U.S. Supreme Court. Their appeal invoked the fringe independent state legislature (ISL) theory to argue that state legislatures have special authority to draw congressional maps, free from interference from other parts of the state government such as state courts. Moore gives the Court the opportunity to review this theory — and potentially wreak havoc over federal elections.

The North Carolina Supreme Court court’s decision to rehear Harper also raises the possibility that the U.S. Supreme Court might end up not releasing a decision on the ISL theory at all. Richard Hasen, a law professor at the University of California, Los Angeles, suggests that Moore could become moot, meaning there may no longer be a controversy for the Court to decide. If the North Carolina Supreme Court reverses its decisions in Harper, that could end up mooting Moore and the Court won’t end up taking any position on the ISL theory, for now.

But for this to happen, the timing matters. According to Carolyn Shapiro, a professor at the Chicago-Kent College of Law, it comes down to when the North Carolina Supreme Court releases a new decision. If the U.S. Supreme Court decides Moore before the state court rules on the rehearing, “there’s no problem” and whatever the state court chooses to do will have no impact on Moore. But if the North Carolina court decides the rehearing before the U.S. Supreme Court reaches a decision, “under most circumstances that would moot the case.”

In the end, the legislators that appealed to the U.S. Supreme Court asked for and are getting a rehearing that could negate their appeal to the nation’s highest court. Why? While only the legislators themselves can answer this question, Hasen speculates they’re worried that the Court may not give them a favorable decision. Indeed, during oral argument the justices often seemed skeptical of the legislators’ argument. While mooting Moore in this way means Republicans wouldn’t get a binding nationwide ruling on the ISL theory, they could still get a favorable ruling from the state court that would allow them to rig elections in North Carolina.

But mooting Moore would not necessarily be a good thing. The ISL theory won’t go away just because the U.S. Supreme Court declines to rule in this instance. In a statement to Democracy Docket, Richard Pildes, a law professor at New York University School of Law, argued that it would be better for the Court to resolve the debate over the theory now instead of waiting for it to arise in disputes during the 2024 election cycle. “There’s no question that the issue is going to be raised in many contexts involving federal elections in the 2024 cycle. Given that, it would be unfortunate if the Supreme Court were to find Moore v. Harper to be moot. The issues won’t go away: they will just be raised in potentially more destabilizing contexts.”

At the same time, not everyone agrees that the rehearing will necessarily moot Moore. J. Michael Luttig, a former federal judge and prominent legal conservative, argues that the North Carolina court would only rehear the December 2022 decision, not the February 2022 decision that was appealed to the U.S. Supreme Court. But even if the state court does overturn its February decision, Luttig believes the U.S. Supreme Court would still issue a ruling in Moore. “Once a case has been submitted and argued…there arises a cognizable judicial and public interest in the final decision of that case.” Shapiro agrees, noting, in a phone call with Democracy Docket, that Moore isn’t just an ordinary case. “There are some ways in which election law is treated differently. Because of the nature of this claim, and the fact that it affects elections, and that if it’s not decided in this context, it’s likely to come up in the middle of an election when it’s hot and highly fraught with enormous partisan implications. I think the court will probably want to decide it.”

No matter what happens in Moore, Shapiro stresses that the issues over the ISL theory won’t be fully resolved. “No matter what [the Court] says in Moore, there will still be some questions outstanding.”