“An injustice that is so glaring, so lawless, and such a betrayal to the democratic values upon which our constitution is based will not stand forever,” wrote a dissenting judge.
By Kenny Stancil. Published 4-28-2023 by Common Dreams
In what voting rights advocates called a “blatant attack on democracy,” the North Carolina Supreme Court on Friday issued a ruling that allows partisan gerrymandering, reversing earlier decisions that outlawed rigged maps.
The ruling enables North Carolina Republicans to redraw state and U.S. congressional districts in a self-serving way. This has major national implications because it paves the way for the GOP to expand its narrow U.S. House majority in 2024 and potentially beyond.
“This Supreme Court ruling will go down as one of the gravest assaults on democracy ever in North Carolina,” Bob Phillips, executive director of Common Cause North Carolina, said in a statement. “Now, extreme partisan gerrymandering has been legalized and it will be weaponized against voters. That’s wrong. Undoubtedly, the justices who wrote this shameful decision know it’s wrong, as do the self-serving legislators who embrace gerrymandering.”
Last year, a previous iteration of the North Carolina Supreme Court struck down GOP-drawn congressional and state legislative maps, deeming them unconstitutional partisan gerrymanders under the state’s Free Elections Clause, Equal Protection Clause, and Freedom of Speech and Assembly Clauses.
Notably, the discarded congressional map was projected to give Republicans control of 11 of the state’s 14 U.S. House districts. The court-ordered map used during the 2022 midterms, by contrast, led to a 7-7 split that reflects the state’s battleground status. As a result of Friday’s ruling, Republicans are poised to recreate the rigged map thrown out last year, potentially gaining as many as four U.S. House seats in 2024.
Harper v. Hall, a lawsuit originally filed in 2019 by Common Cause North Carolina after Republican lawmakers drew legislative and congressional maps that effectively disenfranchised hundreds of thousands of Democratic voters, is the case in question. In a December ruling, the North Carolina Supreme Court reaffirmed that the state constitution protects voters from partisan gerrymandering.
However, following last November’s elections, the composition of the Tar Heel State’s highest court flipped in January from a 4-3 Democratic majority to a 5-2 Republican majority. In February, the newly GOP-controlled court made the unusual decision to rehear the case.
With Friday’s 5-2 decision, Republican justices overturned the court’s previous rulings declaring partisan gerrymandering illegal, thus granting state lawmakers the power to remake legislative and congressional maps as they see fit, with few if any checks from the judiciary.
In a 71-page dissent joined by the only other Democrat on the court, Justice Anita Earls wrote: “Let there be no illusions about what motivates the majority’s decision to rewrite this court’s precedent. Today’s result was preordained on 8 November 2022, when two new members of this court were elected to establish this court’s conservative majority.”
“To be clear, this is not a situation in which a Democratic-controlled court preferred Democratic-leaning districts and a Republican-controlled court now prefers Republican-leaning districts,” Earls continued. “Here, a Democratic-controlled court carried out its sworn duty to uphold the state constitution’s guarantee of free elections, fair to all voters of both parties. This decision is now vacated by a Republican-controlled Court seeking to ensure that extreme partisan gerrymanders favoring Republicans are established.”
Justice Earls, dissenting from the North Carolina Supreme Court's 5–2 decision greenlighting GOP gerrymandering once again:— Mark Joseph Stern (@mjs_DC) April 28, 2023
"A Republican-controlled Court [is] seeking to ensure that extreme partisan gerrymanders favoring Republicans are established." https://t.co/A1bMm8EtiP pic.twitter.com/GCdWUgwrhB
“Following decisions such as this, we must remember that, though the path forward might seem long and unyielding, an injustice that is so glaring, so lawless, and such a betrayal to the democratic values upon which our constitution is based will not stand forever,” Earls went on to argue.
“I look forward to the day when commitment to the constitutional principles of free elections and equal protection of the laws are upheld and the abuses committed by the majority are recognized for what they are, permanently relegating them to the annals of this court’s darkest moments,” she added. “I have no doubt that day will come.”
Journalist Mark Joseph Stern condemned the five right-wing judges for removing “limits on the legislature’s ability to permanently gerrymander one party out of power,” calling it “a brutal blow to democracy in North Carolina.”
“The state is closely divided but Republicans are going to award themselves a supermajority of congressional districts by gerrymandering Democratic voters into irrelevance,” Stern said. “They already hold a legislative supermajority.”
According to Common Cause, “Justices ruled the high court did not have jurisdiction to weigh into partisan matters because the state constitution contains no mention of partisanship in regards to elections.”
As Politico noted, “Much of the majority’s rationale echoes that of a 2019 U.S. Supreme Court decision that found federal courts could not act against partisan gerrymandering, but left the question in individual states to their courts.”
Hilary Harris Klein, senior counsel for voting rights at the Southern Coalition for Social Justice (SCSJ), described Friday’s decision as “a concerning and dramatic departure from the historic and important role our state courts have played in protecting voters and providing a check on the legislative branch.”
“Checks and balances are fundamental to our system of government,” said Klein, whose group is representing Common Cause North Carolina alongside co-counsel Hogan Lovells. “We share the concern of the dissent that ‘the majority has already repeatedly revealed itself to be on a mission to pursue the agenda of this select few in the legislature.'”
As Common Cause explained:
Because Harper is the underlying case to the U.S. Supreme Court case Moore v. Harper, justices at the federal level asked parties in early March to submit additional briefs on whether or not the highest court still has jurisdiction in the case. Common Cause, through its attorneys at SCSJ and Hogan Lovells, argued that the U.S. Supreme Court is still the proper venue to decide this important case about the future of checks and balances in our election processes.
The U.S. Supreme Court has not yet responded to those briefs, but Common Cause remains hopeful the court will reject the fringe independent state legislature theory presented in Moore.
“Today, in a highly partisan decision, the North Carolina Supreme Court shredded the state’s constitutional protection of free and fair elections, siding with power-hungry politicians to strip every voter of the right to cast a ballot without political manipulation, and taking away our freedom to determine the future of our families and our neighborhoods,” said Kathay Feng, vice president of programs for Common Cause.
“We now await the U.S. Supreme Court’s decision in Moore v. Harper to determine if it will uphold the checks and balances enshrined in the U.S. Constitution and state constitutions, or if it will give absolute power to state politicians to manipulate our federal elections and undermine our votes,” Feng added.
As Common Dreams has reported, Moore v. Harper threatens to hand state legislatures, many of which are highly unrepresentative due to rampant map-rigging, virtually unlimited authority to oversee and potentially skew local as well as national elections, casting further doubt on the future of U.S. democracy.
The reversal on Harper v. Hall wasn’t the only anti-democratic blow the North Carolina Supreme Court delivered on Friday.
As Common Cause pointed out: “The court also issued separate decisions reinstating racially discriminatory voter ID and revoking voting rights in another case for individuals with a felony conviction. In all three cases, the justices were split 5-2 along party lines to toss extensive factual findings from multi-week trials in the lower courts—a rarity saved for exceptional circumstances, of which none of the cases had.”
In Phillips’ words, “We are seeing our constitutional protections surrendered to the whims of extremist politicians.”
“We will not give up,” he added. “We will oppose any attempt by politicians to engage in racist and partisan gerrymandering. The people of North Carolina will not be silenced.”
This work is licensed under Creative Commons (CC BY-NC-ND 3.0).