RALEIGH, N.C. (WGHP) – Stop us if you have heard this argument before: The North Carolina legislators think they should be able to draw electoral maps without concern about how those districts tilt politically, and voting rights advocates say such gerrymandering violates voters’ rights and the state constitution.
Yes, the NC Supreme Court again on Tuesday spent an hour listening to lawyers make their ad hominem arguments about this issue in the rerun of a rerun of a rerun of our perennial reality show.
Only this time, it was really two or three cases rolled into one from the foundation of its latest incarnation, Harper v. Hall, which was 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, and closed the loop on the series of hearings that led to the electoral districts used in the 2022 elections for Congress and the General Assembly.
Those maps were ordered redrawn after a trial court in Wake County and 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.
But newly empaneled state justices in February have taken the remarkable step of granting legislative leaders’ request to reconsider justices’ decision entered Dec. 16, which upheld their earlier judgment that political districts can’t be gerrymandered to maintain political power.
The court also agreed to rehear a decision from that same date in December that struck down the constitutional amendment voters passed in 2018 to require photo identification be shown before voting. But that’s another hearing for another day (Wednesday, to be exact).
House Speaker Tim Moore requested the rehearing on Jan. 20, claiming in his brief that “errors” and “judicial activism” had led the court to rule against the legislators’ work on both issues. But one key point is that the justices acting now are a 5-2 majority of Republicans for the first time in history.
All of this, too, is entangled in a case being heard by the U.S. Supreme Court. Last week SCOTUS asked for memos from the litigants about how this rehearing might affect Moore v. Harper, the significant case the justices agreed to hear about whether this case continues to require a review of the controversial independent state legislature theory, which asserts that under the U.S. Constitution’s Elections Clause, only state legislatures can enact rules regulating federal elections. That would include drawing congressional maps without judicial review.
To understand this picture and how it played out with the maps the courts had redrawn last year, realize that the state is now represented by seven Democrats and seven Republicans in Congress. The state Senate is a GOP supermajority, and the House is one vote short of that. Those candidates were elected under the maps the courts approved last year.
With that as a backdrop, attorneys made relatively the same arguments that have been brought each time gerrymandering has been heard before any number of judicial robes in any courtroom in any year for more than a decade.
Arguing their cases
The familiar face of Phillip Strach argued for the General Assembly, and he and attorneys for Harper and the NCLCV made their points on Harper 1 (the court’s decision from February 2022), Harper 2 (the decision from December that referred to Harper 1) and brought in references to the Supreme Court and Moore v. Harper.
Or at least they tried to make those points. Often, they were interrupted with questions both specific and tangential, with points back and forth reaching into the 1800s and across America to find purchase in some argument that was going to sway the day.
The justices – particularly Anita Earls, newcomer Richard Dietz and Chief Justice Paul Newby – frequently went to history and inference. Before the oral arguments, the court ruled that it didn’t want to hear from anyone except the principals, last week denying an amicus brief submitted by Gov. Roy Cooper and Attorney General Josh Stein. In some cases, it didn’t seem like they wanted to give these attorneys a say, either.
Missing was a perennial litigant for voting rights groups, Allison Riggs, who now is a member of the NC Court of Appeals.
What they said
“Harper 2 shows that Harper 1 was an error,” Strach said in opening his 15 minutes of argument. “Harper 2 demonstrated that Harper 1 was a fool’s errand. It struck down a plan for the state Senate and allowed the House plan with no meaningful difference. Harper 2 should be withdrawn [as a decision] and Harper 1 should be overruled.”
Strach made this point, which was underscored in his response to a question because the General Assembly did not ask for a rehearing of Harper 1 within the specified amount of time. That’s why this appeal seeks the domino rulings.
His argument primarily was that there was no foundation for Harper 1 because there is no constitutional standard for partisan gerrymandering, and Harper 2 flows off of Harper 1. He called it a “heads-I-win, tails-you-lose” standard.
Dietz, then, wanted to know whether his court should be wading into this decision given that the Supreme Court was considering Moore v. Harper and that lower courts typically would refrain from decisions while higher courts decide.
“The Supreme Court will do what the Supreme Court is going to do,” Strach responded. “We ask you to vacate and withdraw Harper 2 and overrule Harper 1 as precedent.”
Earls asked about the trial court’s finding of “extreme partisan gerrymandering” in the construction of legislative maps. “In spite of those facts, the constitution does not apply?” she asked.
“Some things, your honor, are beyond the power of this court,” Strach said.
Earls: “You advocate that the legislature has free rein” to draw maps?
Strach: “This court does not have the power to address that issue, does not have the tools to answer the questions. It tried in Harper 1 and failed. It failed based on the outcome of Harper 2.”
The tone of the exchanges changed significantly when the two attorneys arguing for the voting rights groups stood for their pitches.
Lalitha Madduri of the Harper’s plaintiffs no sooner had gotten momentum than Newby started to grill her about whether these standards should apply to all electoral districts in North Carolina – which Justice Trey Allen later suggested were 100 counties and 500-plus municipalities – and not just these three.
She tried to respond by saying all parties support “free elections in all situations.”
But then Newby bore in on the issue of whether the General Assembly should be given deference when it came to this matter – a principle of the federal suit – and the roles of special masters and their advisers in drawing the maps used in 2022.
He cited the complaint that two of the advisers to the special masters had been accused of working for political campaigns, an issue with which the court found no problem, because the advisers’ opinions would not have changed the outcome. Newby related that to a question about whether there was equal weight given to all perspectives in this case.
All of this left Madduri looking for notes to find responses to questions that didn’t fit the arguments she had prepared. She admitted in some cases she couldn’t answer with specifics about such nuance.
Then at the end of her time, she was hit by a question from Dietz about a filing from Common Cause that suggested that the court’s decision to rehear was “frivolous,” a term to which he took obvious exception and bore in on Madduri, who handed the question to Sam Hirsch of NCLCV as her time expired.
“That was a filing by Common Cause alone,” Hirsch said in attempting to sidestep the question and begin his presentation.
Dietz wasn’t allowing that.
“Any reasonable person reading that finding certainly knows it wasn’t frivolous,” Dietz said. “Maybe not meritorious. … But it was largely based on the dissent [in Harper 2] by our chief justice. It was far away from frivolous. Is it sanctionable to say it’s frivolous? Does your client believe that case was frivolous?”
Hirsch: “There are serious problems with it. I don’t think any parties here should be sanctioned.”
‘The court didn’t have jurisdiction’
During the rebuttal, only Strach and Hirsch participated. Strach reiterated his position that “this should not have been addressed by the court to begin with … The maps should not apply.”
Earls questioned state law that suggested that if the court threw out both those decisions, that maps would revert to those used in 2021, which Strach argued was an error because verbiage in legislative rules did not establish that precedent.
“The legislature should be able to go back and draw new plans,” he said. “The court didn’t have jurisdiction to order redraws to begin with.”
Arguments outside the courtroom
Even before lawyers took their places and the justices entered the room, the courts of public opinion had started to make their cases.
A rally outside the Capitol staged by Common Cause brought speakers from various organizations to rally the public on the matter of voting rights.
“A year ago, the state Supreme Court made the right call,” Bob Phillips, executive director of Common Cause NC, said. “What this Supreme Court does is unknown, but if gerrymandering is legalized, history will judge those who make that decision and those pushing for it will pay a political price with we the people of North Carolina.”
The NC Republican Party countered by issuing a statement that coincided with the rally. “This case is about righting the egregious wrongs committed by an out-of-control court and reestablishing the proper constitutional roles of our three branches of government when it comes to legislative redistricting,” NCGOP Chairman Michael Whatley said. “The People of North Carolina deserve to know their judiciary, and our elections, follow the constitution – not Democrat schemes to force their radical agenda despite losses at the ballot box.”
After the hearing, Democrats had a press conference that included three sitting members of Congress – 2nd District Rep. Deborah Ross (D-Wake), 4th District Rep. Valerie Foushee (D-Durham) and 13th District Rep. Wiley Nickel (D-Cary) – along with state Senate Minority Whip Jay Chaudhuri (D-Wake) and NC DP Chair Anderson Clayton.
“Here’s the bottom line,” Ross said. “Voters should choose their representatives, not the other way around. NC is a purple state through and through. We finally have a congressional delegation that reflects the ideology of our state. We must be a state where every person can participate in a fair and free democracy.”
What are the arguments?
The argument for the plaintiffs from the voting rights groups is simple: The Supreme Court got it right the first time, and there is no legal argument put forward about why that should be changed.
The argument from the legislative leaders is simple: The court has no right to review redistricting, because it’s strictly a legislative responsibility as outlined in the Voting Clause of the U.S. Constitution.
That’s where the U.S. Supreme Court is watching. That court, which in December heard oral arguments on whether the legislative branch has ultimate and uncheckable authority, last week asked for memos about what this rehearing means to its case.
Is this a court looking for a precedent that allows it a simpler ruling? Because an overturned case may indicate that the Supremes no longer need to decide the hot potato that is Moore v. Harper.
The case made simple
Democracy Docket reduced the case to its simplest terms. From that analysis, the best way to understand its complexities is to see the effects of these two examples.
Look at the legislature-drawn Congressional map from November 2021. See how Guilford County would have been represented with this map. The county’s voting power would be split among three districts, with Republican incumbents who live nowhere near the county in two of them, and a third district that has no incumbent and is spread across all or parts of seven counties, including a corner of Wake County, which splits urban areas.
The map under which you cast your vote was infinitely more balanced. And the 6th District, which includes Guilford County, was much more politically diverse than it was in 2020. But it also kept Guilford County whole and preserved the sway of Greensboro/Winston-Salem/High Point in one judicial basket, which is an advantage, the mayors of the three would tell you. Wake County also was left split between two districts.
Because this is about establishing and maintaining control of a process, this case arguably will have more impact on your democratic rights than anything going on in the General Assembly to protect your democratic rights. At risk is the principle of voters choosing their candidates rather than election maps choosing voters for incumbents.
The state Supreme Court in reconsidering this case will be deciding whether to:
- Throw out the judgments of the same court made in February 2022 to rule that partisan gerrymandering violates the state constitution.
- Throw out the decision this court made in December that says the maps for congressional and Senate districts can be redrawn but House districts should hold firm.
- Rule that partisan gerrymandering is not justiciable, meaning that the courts can’t review that concept in principle.
- Do nothing and let the situation stay as it is, with the U.S. Supreme Court ruling on the case it heard in December about the ultimate power of the legislature in these matters.