RALEIGH, N.C. (WGHP) – You now have two likely new expectations about how next year’s elections will be staged in North Carolina: You will vote for members of Congress and the General Assembly in new election districts that will be gerrymandered for political strength, and you will have to show a photo ID to do so.

In expected and strongly worded decisions released Friday, the new Republican majority in the North Carolina Supreme Court threw out decisions the prior court made last year and returned to the General Assembly broad rein in establishing law in the state.

In what it calls a “returning the judiciary to its designated lane,” justices, by the 5-2 GOP majority, struck down the ruling in Harper et al v. Hall that set aside voting maps drawn by the General Assembly because the court had said they were illegally gerrymandered in violation of the state Constitution.

And in a case called Harper v. Moore, the justices, by the same majority, also overturned a decision and remanded to a Wake County Superior Court the rejection of the law that had found the law leading to a constitutional amendment on voter ID from 2018 to be illegal.

And in a case called Harper v. Moore, the justices, by the same majority, also overturned a decision and remanded to a Wake County Superior Court the rejection of the law that had found the law leading to a constitutional amendment on voter ID from 2018 to be illegal.

Both cases were reheard in a request of the General Assembly after the GOP for the first time in November assumed control of the court with a 5-2 majority. Both opinions were reconsiderations of 4-3 rulings based on the Democratic majority the court had held since justices were required to be partisan.

Plaintiffs attorney Paul Brachman answered various questions from Associate Justices Richard Dietz (from left), Phil Berger Jr. and Michael Morgan as Chief Justice Paul Newby (right) listens during the rehearing of the voter ID case. (WGHP)

The state Supreme Court on Dec. 16 had struck down the constitutional amendment voters passed in 2018 to require a photo identification be shown before voting and upheld its earlier judgment that political districts can’t be gerrymandered to maintain political power.

There was little doubt that the court would uphold either decision, and now the question becomes how the General Assembly will handle the changes. The language in the opinions certainly appears to give them the path to establish electoral control by the GOP that will be difficult for voters overcome.

In various decisions in the past decade, federal and state courts routinely have rejected the methods and maps produced by the General Assembly because judges found that they discriminated and created political control inconsistence with the distribution of voters in the state.

“For years plaintiffs and activist courts have manipulated our Constitution to achieve policy outcomes that could not be won at the ballot box,” Senate Leader Phil Berger (R-Rockingham) said in a release after the rulings. “Today’s rulings affirm that our Constitution cannot be exploited to fit the political whims of left-wing Democrats.”

It also is unclear how the redistricting decision might affect a case heard in December by the U.S. Supreme Court in which the General Assembly had argued that it had sole authority to draw maps for congressional elections and that local courts could not review them, as they had in 2022. There is reason to believe SCOTUS might dismiss that case rather than enter a highly controversial decision.

Rick Hasen, an election law expert on faculty at UCLA Law, wrote Friday morning that the decision rendered the Supreme Court case moot because the NC court essentially held that “it cannot consider partisan gerrymandering claims under the state constitution.”

Hasen had filed an amicus brief with SCOTUS in that case, and he wrote that, with the state court’s overruling of the decision in Harper 1, the case that threw out electoral maps, “it’s hard to see how the U.S. Supreme Court continues to review Harper 1.”

Redistricting case

NC Chief Justice Paul Newby
NC Chief Justice Paul Newby

In their decision in Harper et al v. Hall, the court, with a Republican majority for the first time, said, in an opinion written by Chief Justice Paul Newby, that the court, had no right to interpret the Constitution as it had in throwing out electoral maps for the U.S. House, and state House and Senate, siding with the original 3-judge panel in Wake County that had said it agreed that the maps were partisan gerrymanders but they couldn’t do anything about it under the state constitution.

“This Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution,” Newby wrote. “Today we return to the text of the state constitution, correct our course, and come back to the proper understanding and application of our fundamental constitutional principles.

“In its decision today, the Court returns to its tradition of honoring the constitutional roles assigned to each branch. This case is not about partisan politics but rather about realigning the proper roles of the judicial and legislative branches. Today we begin to correct course, returning the judiciary to its designated lane.”

He cited the plain language that was used in writing the constitution and said that interpretations by others should not apply.

“There are no hidden meanings or opaque understandings—the kind that can only be
found by the most astute justice or academic. The constitution was written to be
understood by everyone, not just a select few,” Newby wrote.

NC Supreme Court Associate Justice Anita Earls
Associate Justice Anita Earls

In a 71-page dissent, Associate Justice Anita Earls, joined by Associate Justice Michael Morgan, attacked harshly that opinion, writing that “in a single blow, the majority strips millions of voters of this state of their fundamental, constitutional rights and delivers on the threat that ‘our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.’”

She wrote that the decision offers defendants is “a primer for the lawlessness that recurs throughout this opinion. The majority makes repeated declarations that “[t]he constitution is interpreted based on its plain language”—that “[t]he constitution was written to be understood by everyone, not just a select few.’

“But the majority also consistently struggles to apply those principles itself. Nowhere is this more evident than in the remedy the majority awards Legislative Defendants. What Legislative Defendants want is a do over—a chance to go back in time and draw even more egregiously gerrymandered maps than they did before this litigation began. Because of the majority’s decision today, they now have the assurance that they will get away with it.”

   Harper v. Hall by Justyn Melrose on Scribd

Hasen wrote in his election law blog that “as a political matter, this will allow the NC general assembly to engage in the most partisan gerrymander of congressional seats it can think of.” He said that the General Assembly has to start over drawing maps because those drawn in 2021 and 2022 were “without full consideration of partisan data that should be available to legislators.”

The maps the Congress and the General Assembly in 2022 were drawn with the guidance of special masters – three former judges and justices – appointed by the court. They created districts that split wound up splitting evenly the state’s 14 seats in Congress, but Republicans won just about everything else, earning a supermajority in the Senate, nearly one in the House (a recent party switch created one) and the telltale control of the courts.

Voter ID case

Associate Justice Phil Berger Jr.
Associate Justice Phil Berger Jr.

The rehearing and lower court decision on the voter Id law was based on Senate Bill 824, which established the voter ID amendment. The courts had found it to be racially discriminatory because of the makeup of the court and how it aligned with precedent.

Gov. Roy Cooper vetoed the original bill, but the GOP supermajority in the General Assembly overrode that veto. After numerous legal appeals, voters ultimately approved the bill with 55.49% of about 3.7 million votes cast.

Because of the GOP’s supermajority, Wake County Superior Court Judge G. Bryan Collins Jr. had agreed with the NAACP that the legislature couldn’t take action to establish the amendment because the courts had found its makeup to be illegal along racial lines. His ruling had been overturned by the state Court of Appeals.

The Supreme Court’s opinion last year, in upholding the trial court’s finding on review, said the General Assembly did not act with proper consideration process and that Senate Bill 824 “violates Article I, section 19 of the North Carolina Constitution because the law was enacted with discriminatory intent.”

But Associate Justice Phil Berger Jr. wrote the opinion in voter ID, a law and amendment supported and endorsed by his father, Senate Leader Phil Berger, in which he and his four fellow Republican justices found that “the plaintiffs “have failed to prove beyond a reasonable doubt that S.B. 824 was enacted with discriminatory intent or that the law actually produces a meaningful disparate impact along racial lines.” The case was remanded to the trial court to order a dismissal of the claim with prejudice.

“The people of North Carolina overwhelmingly support voter identification and other efforts to promote greater integrity and confidence in our elections,” Berger Jr. wrote. “Subjective tests and judicial sleight of hand have systematically thwarted the will of the people and the intent of the legislature.

“But no court exists for the vindication of political interests, and judges exceed constitutional boundaries when they act as a superlegislature.

“This Court has traditionally stood against the waves of partisan rulings in favor of the fundamental principle of equality under the law. We recommit to that fundamental principle and begin the process of returning the judiciary to its rightful place as “the least dangerous” branch.”

In dissenting, Morgan wrote that justices were doing what they accused the prior majority of doing in their prior dissents and that the justices who wrote in dissent of those cases – including Newby – “have not been reticent about the notion of introducing partisan politics into this court’s opinions when they disagreed with various case outcomes. Indeed these three justices have clearly been enamored with this strategic approach.”

He cited the long history of racial discrimination in North Carolina and precedent in U.S. Supreme Court cases called Abbot and Arlington Heights that informed the original findings.

“The remainder of the majority’s opinion engages in an improper and selfserving reweighing evaluation of the evidence presented to the trial court which bears on disparate impact,” Morgan wrote. ”While it is elementary that reweighing evidence upon appellate review is fundamentally wrongful, the egregiousness of the majority’s act is particularly pronounced since the case is back on rehearing. The correct standard of review for a trial court’s findings of fact is highly deferential.”

Strongly worded reactions

NC House Speaker Tim Moore said the two decisions “ensured the will of the people of North Carolina are honored.

NC House Speaker Tim Moore (R-Cleveland)
NC House Speaker Tim Moore (R-Cleveland)

“Nearly five years after the voters of this state overwhelmingly voted in favor of photo ID at the polls, it has finally become the law of the land,” he said in a statement released by his staff. We will fulfill our constitutional duty to redraw state house, senate and congressional maps.”

Bob Phillips, executive director of Common Cause North Carolina, wrote on this Twitter feed that the ruling about legislative maps, in which his organization was a plaintiff, “will go down as one of the gravest assaults on democracy ever in North Carolina.”

And Carrie Clark, executive director of North Carolina League of Conservation Voters, another plaintiff, said, “We’re deeply disappointed by the ruling and agree wholeheartedly with the dissent by Justice Earls that characterizes the majority opinion as a ‘shameful manipulation of fundamental principles of our democracy and the rule of law.’

“We appreciate her optimism in concluding, ‘I look forward to the day when commitment to the constitutional principles of free elections and equal protection of the laws are upheld and the abuses committed by the majority are recognized for what they are, permanently relegating them to the annals of this Court’s darkest moments.'”

NC Democratic Chair Anderson Clayton. (NCDP)
NC Democratic Chair Anderson Clayton. (NCDP)

Said Anderson Clayton, chair of the NC Democratic Party: “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.

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“We should be making it easier to vote – not harder. Today, the Republican majority court pushed their own partisan goals instead of defending our democracy and the freedom of North Carolinians to choose their elected leaders – a shameful and un-American power grab that will harm North Carolinians.”

But her counterpart, NCGOP Chair Michael Watley, unsurprisingly though, the decisions were “a great day for North Carolina and the Rule of Law. The People of North Carolina rejected the blatant activism of the progressive judges by electing a strong majority of conservative Justices. These rulings are a big step toward restoring respect for the Constitution and taking politics out of the courtroom.”

Valerie Foushee, 4th District candidate
4th District Rep. Valerie Foushee (D-Durham)
Rep. Kathy Manning (D-Greensboro) (Courtesy of US House of Representatives)
6th District Rep. Kathy Manning (D-Greensboro)

Six of the seven Democrats representing North Carolina in Congress – 6th District Rep. Kathy Manning (D-Greensboro), 4th District Rep. Valerie Foushee (D-Durham), 12th District Rep. Alma Adams (D-Charlotte), 2nd District Rep. Deborah Ross (D-Raleigh), 14th District Rep. Jeff Jackson (D-Charlotte) and 1st District Rep. Don Davis (D-Snow Hill) released a joint statement in opposition to the decision.