In a near-unprecedented move, the North Carolina Supreme Court reheard a consequential voting rights case last week that could affect the 2024 elections.
Harper v. Hall focuses on the long-standing issue of partisan gerrymandering—when one political party draws the boundaries of electoral districts in its own favor so it can stay in power. Often, that means dividing blocks of voters, like Black voters, across different districts to dilute their voting power.
Harper v. Hall pits North Carolina Republican lawmakers, who approved a gerrymandered electoral map after the decennial census, against local voting rights groups, who argue the map is unconstitutional.
The NC Supreme Court originally struck down the gerrymandered map in February of 2022 in what seemed like a major win for voting rights groups and Democrats. The court, which had a Democratic majority at the time, ruled in favor of voting rights groups in a 4-3 vote along party lines.
Now, however, that decision may be reversed. Despite the fact that the supreme court has already ruled on the case, Republican lawmakers are asking a new, Republican-controlled supreme court to weigh in.
During the 2022 election, Republicans gained two seats on the state supreme court, giving them a 5-2 majority. In an unheard-of move earlier this year, Republican lawmakers asked the new court to rehear Harper v. Hall, although there were no new laws or facts that could influence the outcome. Essentially, they asked for a do-over like a child shouting for a rematch after losing a game.
What’s at stake
The court’s decision earlier this year to grant Republican lawmakers’ request for a rehearing sends the message that they’re willing to possibly reverse the original Harper v. Hall decision. It immediately sparked condemnation from Democrats and nonpartisan voting rights groups. Democratic justices Anita Earls and Michael Morgan joined in a dissent.
“It took this Court 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,” Earls wrote in her dissenting opinion. “The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.”
Last week, during the Harper v. Hall rehearing, Morgan also questioned why the court should revisit its earlier decision.
“What has happened over the course of the past 88 days since we issued our opinion in this case that would mandate and compel a different result?” Morgan asked Phil Strach, the lawyer representing Republican lawmakers.
In the past 30 years, the state supreme court has agreed to rehear cases only twice and never when the only change was the court’s own political makeup. Historically, rehearings are used to make minor changes to existing opinions, such as adding a citation for an important precedent or incorporating new facts.
If the state supreme court uses the Harper v. Hall rehearing to reverse its earlier decision, it could set a precedent that gives future courts the ability to revisit cases they disagree with.
Republicans, in the meantime, are arguing that the former Democratic-majority court was also influenced by politics, thus the need for a rehearing.
In a news release, Republican House Speaker Tim Moore accused the former court of “judicial activism” and implied that its decision was not based on the rule of law. State senator Phil Berger (R–26th District) has made similar statements, arguing the court was influenced by politics when it made its original decision.
Political pressure on the court has increased in recent years. With redistricting and other voting rights issues continually coming before the judicial branch, activists from out of state have poured millions of dollars into judicial campaigns in North Carolina.
“This really comes down to stare decisis. The decisions and the law in the state should not change with the composition of the court,” says Hilary Harris Klein, senior counsel for voting rights at the Southern Coalition for Social Justice, which represents voters in Harper v. Hall.
“[Everyone] needs to have certainty that when the supreme court issues a legal ruling, that ruling is not just going to change after the next election. Even if you have partisan judicial elections like we do … there is an expectation that you will check your partisanship at the door.”
The future of gerrymandering
It seems clear, however, that the court today has been influenced by politics to some degree. In addition to rehearing Harper v. Hall, the court also reheard Holmes v. Moore last week, a case challenging voter ID. In both cases, lawyers retread old arguments.
Strach, the lawyer representing Republican legislators, argued that partisan gerrymandering is not explicitly prohibited by the state constitution. The court’s original decision, he said, was based on “vague constitutional provisions that do not say anything about partisanship and redistricting.”
“Are you saying because the word ‘fair’ does not appear in the constitution, that elections do not have to be fair?” asked Morgan. “That it’s all right for them to have predetermined outcomes based on where the legislature decides where to draw the lines?”
The issue of fairness, Strach responded, should be left up to the people, not the courts or the executive branch.
Meanwhile, Lali Madduri, representing voting rights groups, argued that justices must make a decision based on whether all voters have equal power to make their voices heard. In a barrage of questions, Republican Chief Justice Paul Newby raised issues of how the maps used in the 2022 election were drawn, whether politics influenced the process, and who should determine whether maps are fair or not.
“The ultimate standard here is whether the voters have substantially equal voting power,” Madduri said. “It’s a principle of the free elections clause that elections should reflect the will of the people.”
If the court rules in favor of voting rights groups, they are asking the state to continue using the maps used in the 2022 election, which were drawn with the help of three experts and are “constitutionally valid,” says Klein.
Republican lawmakers, on the other hand, are asking to again redraw the electoral maps if they win the case, rather than defaulting to the original (gerrymandered) maps they approved in 2021. The request directly conflicts with a constitutional prohibition on “mid-decade redistricting,” which says that once “established,” lines cannot be redrawn, says Klein.
“[Republican] legislators have asked for free rein to draw new state legislative districts,” Klein says. “The legislators are saying that even if every legal argument falls in their favor, the court should not go back to the 2021 maps. They want permission to just redraw everything. And that’s squarely prohibited by our constitution.”
Decisions on the two cases are likely to be made later this year or early next year. If the maps are changed, they will be in effect for the 2024 elections.
How will this affect Moore v. Harper?
The resurgence of Harper v. Hall also has big implications for a case the U.S. Supreme Court heard late last year. Moore v. Harper started as an appeal of the NC Supreme Court’s 2022 decision in Harper v. Hall. The federal case raises questions about how much power the legislature has to govern elections.
In appearances before the U.S. Supreme Court last year, North Carolina Republicans argued that state lawmakers should have almost complete power over elections and that state courts have no authority to strike down election laws and impose new ones, as they did in 2022.
Their argument is based on the “independent state legislature theory,” a belief that state legislatures have the sole power to govern elections without being constrained by the state constitution or court. It’s a theory that has been widely debunked by legal experts.
Moore v. Harper could give North Carolina’s Republican-dominated legislature unfettered power to approve gerrymandered maps and impose voter ID, which has alarmed and mobilized voting rights activists. But the U.S. Supreme Court is now questioning whether it has the power to issue a decision in the case at all.
Earlier this month, the court asked parties in the case, including the Biden administration, to write legal briefs addressing whether the court still has the power to issue a decision, since the underlying case (Harper v. Hall) is now being reheard in state court.
Those briefs were submitted earlier this week. The Supreme Court has yet to make a decision on whether to move forward with the case.
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