RALEIGH, N.C. (WGHP) – In case you were wondering if the new Republican majority on the North Carolina Supreme Court would play an active role in shaping state policy, all you need to do is consider that on Friday the court agreed to hear appeals on two decisions its predecessors made last year.

The justices, in a 5-2 decision along party lines, granted hearings next month in appeals brought by North Carolina House Speaker Tim Moore (R-Cleveland) for the court to reverse decisions it made in December on a voter ID law and electoral district maps for Congress and the General Assembly.

Moore filed that request 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.

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

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.

The court was swung in November from a 4-3 Democratic majority to a 5-2 Republican control. Both decisions the court announced in December were along that Democratic majority.

One of the remaining Democratic justices, Anita Earls, wrote in a dissent of the redistricting case published Friday that this was only the second time in 30 years that the Supreme Court had reheard cases on which it had ruled. Earls said this move was a “display of raw partisanship.”

“The majority’s order fails to acknowledge the radical break with 205 years of history that the decision to rehear this case represents,” she wrote. “It has long been the practice of this Court to respect precedent and the principle that once the Court has ruled, that ruling will not be disturbed merely because of a change in the Court’s composition. Indeed, data from the Supreme Court’s electronic filing system indicate that, since January 1993, a total of 214 petitions for rehearing have been filed, but rehearing has been allowed in only two cases.

“It has been the understood practice of this Court that rehearing is not allowed solely because a Justice may have had a change of heart after the opinion in the case has been issued or because an opinion was controversial. Moreover, this Court has respected the idea that “even if judges have ideological preferences and methodological differences . . . partisan loyalties [should] fade away after investiture to reveal a judiciary of men and women bound together by collegiality norms and the rule of law.”

Trey Allen

Rookie Republican justice Trey Allen wrote for the majority in both cases and said that a rehearing was appropriate if “a satisfactory showing that the opinion may be erroneous.” The court set a schedule of filing by March 14 in both cases.

Strong reaction

Sen. Leader Phil Berger (R-Eden) and Moore had been expected to act on both matters. Gov. Roy Cooper almost certainly would veto voter ID laws, but he can’t veto legislative maps. The GOP, which lacks one vote of supermajority status in House – the Senate has it – potentially could override a veto under new rules adopted by Moore.

“I think what was the radical break with history was what the court did last year,” Berger told WNCN. “I think the results of the last election would indicate that the public was not satisfied with the court that existed”

North Carolina Democratic Gov. Roy Cooper (AP Photo/Bryan Anderson, File)

Said Cooper in a statement released late Monday: “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, is now clearly justified. Rehearing cases because you dislike the previous outcome isn’t how our judicial system is supposed to work because the meaning of our constitution doesn’t change when new judges are elected.

“For this Court to reopen rulings just weeks after they were decided is unprecedented and appalling and indicates that these justices reject the idea of an independent judiciary and swear allegiance to the whims of the Republican legislative leadership.

“The plan by the Republican legislature to create a subservient judiciary began with changing the law to force judges to run for election under a political party label, and now we are seeing the ominous result.

“These rulings threaten the public’s confidence in the courts and the very foundation of our democracy.”

Voter ID by Steven Doyle on Scribd

Chaz Beasley of New North Carolina Project, told WNCN that “I think this really undercuts the idea of fairness in our courts,. “This happened not because there’s a change in the facts or a change in the law but because there’s a change in the politics. And, I don’t think voters necessarily want that for themselves.”

Republicans Richard Dietz and Allen were voted onto the Supreme Court, replacing retiring Justice Robin Hudson and defeating incumbent Sam Ervin IV, a fact that had Republicans complaining about the “lame-duck court” deciding those two issues at the end of the year.

 “Republicans are likely to rule in favor of something that sticks with the text of the constitution and what the laws actually say, not what the left-of-center activists are telling the judges and justices,” said Mitch Kokai of the conservative John Locke Foundation. 

Former Attorney General Eric Holder, now a voting rights activist, called the ruling about redistricting an example of “the craven nature of too many North Carolina Republicans. Judges are not – and should not – be political actors once they are elected. It is their duty to serve independently – without political favor. Yet, the newly-elected Republican majority of the North Carolina Supreme Court is apparently preparing to reverse decisions made by their own court just months ago. This is not a function of legal principle – it is an indication of political opportunism,” he said in a statement released by his office.

“Make no mistake, North Carolina Republicans are conducting a multifaceted, contradictory attack against the independence of state courts by using the highest tribunal in their state and the highest tribunal in our nation to achieve the same goal: to allow a gerrymandered legislature to act with impunity. If the Republican majority decides to reverse a decision of its own court made only months ago, it will be an action that is so plainly political and so grossly at odds with precedent, that it will irreparably damage the legitimacy and reputation of North Carolina’s highest court.”

Politics and gerrymandering

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, 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 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.

Hudson’s decision in December denied an appeal by the defendants and suggested they only wanted to avoid affecting arguments in the ongoing Moore v. Harper case about 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.

Voter ID ‘legal error’

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 but ruled unconstitutional in federal court. 

The bill originally was vetoed by Gov. Roy Cooper, 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.

But 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.