North Carolina Supreme Court rehears redistricting case on gerrymandering

DeJuan Hoggard Image
Tuesday, March 14, 2023
NC Supreme Court rehears redistricting case on gerrymandering
It's a fairly unusual move for a court to take this action, but the decision to do so could have a major effect on future elections.

RALEIGH, N.C. (WTVD) -- The North Carolina Supreme Court is rehearing a legal challenge regarding redistricting.

It's a fairly unusual move for a court to take this action, but the decision to do so could have a major effect on future elections.

In its initial decision in February 2022, the court ruled the original maps constituted extreme partisan gerrymandering, violating the state's constitution in several different ways.

GOP lawmakers pushed back, arguing the court did not have standing to mandate new maps.

"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," said Michael Watley, North Carolina Republican Party chairman. "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."

They pointed to the elections clause in the US Constitution, which says state legislatures have the authority to decide the time, place, and manner of elections.

It's a theory known as the independent state legislature theory and while the US Supreme Court rejected an emergency action to intervene they did agree to take up a related case, Moore v. Harper, led by NC House Speaker Tim Moore.

Those arguments were presented to the court in December, but just last month, the NC Supreme Court, now with a Republican majority, agreed to re-hear the initial case.

"At the heart of this case, it's whether the legislature can carve out political districts that's going to entrench a political party in power for an unlimited period of time," said Dr. Irving Joyner, a professor of law at NC Central University.

Tuesday morning, several advocacy groups held a news conference to share their concerns with the court's decision to re-hear the case.

Bob Phillips, Executive Director of Common Cause North Carolina and a plaintiff in this case said he believes the court got it right in its initial decision last year.

"What new evidence or finding of the facts is there to warrant today's re-do of this decision? The answer is right, none. What is happening today in the building behind us is completely unnecessary and frankly outrageous," he said.

The arguments marked the first of two days of rehearings for the justices. The same Republican majority also ordered a hearing for Wednesday on another 4-3 decision in December that upheld a trial court decision striking down a 2018 voter photo identification law.

These rehearing decisions have angered Democrats and their allies, who sued in both cases and claim they were based solely on the partisan makeup of the court. About 300 people attended a Tuesday morning rally at Capitol Square across from the Supreme Court building before Tuesday's arguments lamenting the rehearings and vowing to keep fighting for voters and so-called marginalized groups.

"The law cannot swing back and forth with every election," said Rebecca Harper, a Cary real estate agent and the lead plaintiff in the redistricting litigation who attended the rally. "I'm very very sad that we are back here fighting this same fight again because of what this court and this legislature are pushing for."

Phil Strach, an attorney for the GOP lawmakers, told the court on Tuesday that the 2022 decisions show that state courts lack the ability to calculate and determine what are considered politically fair maps.

"Some things, your honor, are beyond the power of this court," Strach told Associate Justice Anita Earls, a registered Democrat. "This court does not have the power to address that issue because it does not have the tools to answer the question."

Earls cited evidence by a trial court last year from mathematicians that found the 2021 maps the General Assembly approved were more carefully crafted for Republican advantage than at least 99.9% - and in some cases 99.9999% - of all possible alternatives.

"And so you're asking us to say that in spite of those facts, this North Carolina Constitution offers no protection to voters?" Earls asked. Strach said later that some actions are beyond other political branches to address, and that "sometimes it's got to be left up to the people."

"Except how can it be left up to the people" when maps don't reflect the voting strength of the public?" Earls responded.

There was a similar exchange between the attorney for plaintiff Common Cause and the Chief Justice.

"Your honor, the ultimate standard here is whether the voters have substantially equal voting power. Bottom line is that..." argued the attorney, Lali Madduri.

Chief Justice Paul Newby responded: "Who knows that? How do you determine that? How does the General Assembly determine that all voters have equal voting power?

Attorneys for the voters and advocacy groups that initially sued over the maps said in legal briefs that the facts in the cases haven't changed - only the combination of justices have- and so the redistricting decisions should be left intact.

"Because the word fair is not in the Constitution, the legislature should be able to decide through political gerrymandering what the districts should look like, are you saying that because fair does not appear in the Constitution that elections don't have to be fair? That it's all right for them to have predetermined outcomes based upon where the legislature decides to draw the lines?" asked Justice Michael R. Morgan, a registered Democrat.

The Supreme Court didn't give specifics for why they agreed to rehearings. But they can be granted based on arguments that the justices "overlooked or misapprehended" facts or laws.

"Re-hearing this case because your political party didn't like the previous decision is a reckless abuse of power," said Anderson Clayton, North Carolina Democratic Party chair. "Our Constitution doesn't change when new judges are elected. Today's hearing is a slap in the face to the North Carolina voters who have been subject to unconstitutional partisan gerrymandering cycle after cycle."

There's no timeline for when the Supreme Court will rule.

The Associated Press contributed.