RALEIGH, N.C. (WGHP) – There will be no voter ID law in North Carolina – at least for the moment if Senate Leader Phil Berger has anything to say about it.

And the new electoral districts, designed by court-appointed special masters last spring to replace the General Assembly’s gerrymandered districts, will remain in place.

The state Supreme Court rendered both decisions Friday, striking down the constitutional amendment voters passed in 2018 to require a photo identification be shown before voting and upholding its earlier judgment that political districts can’t be gerrymandered to maintain political power.

Both opinions, reached on 4-3 votes along party lines – Democrats for and Republicans against – came just before the court switches to a 5-2 GOP majority after the retirement of Judge Robin Hudson and the defeat of incumbent Sam Ervin IV, a fact that had Republicans complaining about the “lame-duck court.”

Voter ID

Associate Justice Anita Earls

In Holmes v. Moore, the voter ID case, Associate Justice Anita Earls wrote for the majority that the bill that authorized the vote on the constitutional amendment for voter ID “was passed with the discriminatory intent to target African-American voters.”

The voter ID law sought to require picture IDs for voters and replaced a law passed earlier by the General Assembly that had been ruled unconstitutional in federal court. 

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, in upholding the trial court’s finding on review, says 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.”

Associate Justice Phil Berger Jr., son of Senate Leader Phil Berger (R-Eden), a named co-defendant in the case, wrote the dissent, joined by Chief Justice Paul Newby and Associate Justice Tamara Barringer.

His opinion cited a judgment by the Fourth Circuit Court that had found no “discriminatory intent” and that “legal error infected the entirety of the trial court’s decision.”

“The plain language of S.B. 824 shows no intent to discriminate against any group or individual, and there is no evidence that S.B. 824 was passed with race in mind, let alone a racially discriminatory intent,” Berger Jr. wrote.

Original gerrymandering case upheld

The gerrymandering case, brought by defendant Rebecca Harper as a representative of the North Carolina League of Conservation Voters, Common Cause and a group of individuals, against Destin Hall, chair of the House Standing Committee on Redistricting; and Sen. Warren Daniel, Ralph Hise and Paul Newton, co-chairs of the Senate’s standing committee, closes the loop on the series of hearings that led to the electoral districts used in the 2022 elections for Congress and the General Assembly.

Associate Justice Robin Hudson
Associate Justice Robin Hudson

Those maps were ordered redrawn after the NC Supreme Court found them to be illegal political gerrymandering. Ultimately the state court’s finding was left in place by the U.S. Supreme Court.

In its opinion filed Friday, written by the retiring Justice Hudson of Greensboro, the court denied the legislative defendants’ motion to dismiss because, Hudson wrote, the defendants only wanted to avoid affecting arguments in the ongoing Moore v. Harper case about the legislative authority that has been heard by the U.S. Supreme Court. That case would remove the state courts as an arbiter in federal elections.

“Indeed, the very history of this case itself reveals that the judiciary, though not always in perfect agreement, may meaningfully engage with these principles toward the shared goal of ensuring the preservation of constitutional rights and the maintenance of our sacred system of democratic governance,” Hudson wrote.

Justices overturned the trial court’s original finding, upheld the remedial maps and declined to reject the advisers to the special masters the court had hired.

From left, Superior Court Judges Nathaniel Poovey, Graham Shirley and Dawn Layton listen to testimony during a partisan gerrymandering trial over North Carolina's new political maps, Jan. 3, 2022 at a courtroom at Campbell University School of Law in Raleigh, N.C. The panel of trial judges made additional changes to North Carolina's congressional district map Wednesday, Feb. 23, 2022 declaring that the latest U.S. House redistricting performed by the General Assembly fails to meet standards of partisan fairness set recently by the state Supreme Court. (Travis Long/The News & Observer via AP)

Wake County Superior Court Judges Nathaniel Poovey (from left), Graham Shirley and Dawn Layton listen to testimony during a partisan gerrymandering trial. (Travis Long/The News & Observer via AP)

Justices remanded the case to the trial court, and ultimately, Hudson boiled that issue down to this finding:

“If our state is to realize its foundational ideals of equality and popular sovereignty, it must first ‘ensure that the channeling of ‘political power’ from the people to their representatives in government through elections, the central democratic process envisioned by our constitutional system, is done on equal terms.’”

And if lawmakers have any designs on redrawing these maps – as has been discussed since the GOP assumed control of the courts and Cooper has no veto over electoral maps – Hudson may have suggested they think again.

“In accordance with article II section 5 of our Constitution, the RHP is now ‘established’ under law and therefore ‘shall remain unaltered until the return of another decennial census of population taken by order of Congress.’” That would be in 2030.

Newby in dissent wrote that this whole issue is the purview of the General Assembly and that it fulfills a prediction that the court is usurping lawmakers’ role.

“In Harper 1 the majority effectively amended on to establish a redistricting commission composed of judges and political science experts,” he wrote. “When, however, this commission, using the majority’s redistricting criteria, reached an outcome with which the majority disagrees, the majority freely reweighs the evidence and substitutes its own factfinding for that of judge panel.

“Again, as predicted, ‘[t]he four members of this Court alone will approve a redistricting plan which meets their test of constitutionality.’”

Former U.S. Attorney General Eric Holder called the court’s ruling “a victory for North Carolina voters, who will now have both fair congressional and state legislative maps. This decision not only cements important legal precedent in state court – something that any future court will have to consider in redistricting cases going forward – it also underscores the fact that our system of checks and balances must remain intact. … These are neither Democratic nor Republican maps, these are competitive maps that reflect the competitive nature of North Carolina.” 

Reaction from lawmakers

NC House Speaker Tim Moore and Senator Berger didn’t address the gerrymandering decision, but they issued statements decrying the court’s position on voter ID and preordained further action.

North Carolina House Speaker Tim Moore (R-Cleveland, left) and Senate Leader Phil Berger (R-Rockingham). (AP Photo/Gary D. Robertson)

“The lame-duck Supreme Court of North Carolina has issued yet another opinion that defies the will of the majority of North Carolinians who voted for the implementation of a photo ID requirement,” Moore said.

“North Carolina voters have had enough of the disdain this court has for them and the rule of law. Thankfully, the 2022 election was a complete repudiation of this kind of judicial activism on the appellate courts. Instead of learning their lesson in the wake of defeat, the outgoing lame duck liberal majority has, once again, defied the will of the voters and rejected voter ID.”

Berger cited the defendants’ argument rejected by the court that SB 824 had been passed in a bipartisan vote. He also elected to point out that one of the sponsors was Black.

“If Democrats on the state Supreme Court can’t respect the will of the voters, the General Assembly will,” he said. “Regardless of the policymaking goals of the activist justices, the people of North Carolina overwhelmingly support voter ID laws. I look forward to respecting their wishes and passing a new voter ID law next year.”