Three Cases in North Carolina, Decades of Democracy Undone
I’m not certain North Carolina has become the most anti-democratic state in the union. But over the past dozen years, we’ve surely joined the hunt. Our General Assembly has enacted, according to reviewing judges, among the largest, most pervasive racial gerrymanders ever presented to a federal court. Lawmakers used “surgical precision” to deny Black Tar Heels the right to vote. They created the most bald-faced and unrepentant political gerrymanders seen in modern America. They’ve effectively overturned municipal elections when they didn’t like the outcome. And they gutted gubernatorial powers when voters had the gall to elect a Democratic candidate—violating the first premise of democratic governance, that when you lose an election, you don’t burn down the governor’s mansion, you go home, ponder your mistakes, lift yourself off the mat, and try again. We’re pros in thwarting democracy here. True believers.
Last week, a newly transformed and newly Republican North Carolina Supreme Court announced it was becoming a full, faithful, and enthusiastic partner in the ongoing crusade to achieve disabling electoral suppression. November’s election had delivered notable changes to the high court’s membership. A 4-3 Democratic majority gave way, in January, to a domineering 5-2 Republican tribunal. And the newly empaneled majority clearly had the work of its predecessor in its sights. On April 28, the Court issued three major decisions, all by the predictable partisan margins, which the Charlotte Observer deemed “sweeping blows to democracy in North Carolina.”
The rulings were handed down, and timed, in a display designed to connote the announcement of sea change. A new sheriff was in town. All former pretenders should now give way. No longer would the state courts intervene to protect voting rights. No longer would they fret over the intentional distortion of the political process. No longer, even more broadly, would the justices trouble the Republican General Assembly to govern within the lines. No longer would they offer even the pretense of judicial independence. The new North Carolina Supreme Court is operating as an enabling caucus of the state Republican Party. Full stop.
But first the justices had to throw out the rule books. Late in 2022, the preceding Supreme Court had issued final rulings invalidating the state’s extreme political gerrymandering and its racially motivated voter ID law. In a move almost unknown to American law, the new Republican justices decided to take up these cases on a motion for rehearing. Never before in the North Carolina Supreme Court’s over 200-year history had it granted a rehearing based on a change in the tribunal’s membership. Much less based on a change in the partisan makeup of the court. Still, the new activists had work to do. Legal notions like stare decisis and the law of the case had to give way. And give way they did.
First, in Harper v. Hall, the Republican majority gave a warm, and purportedly permanent, embrace to partisan gerrymandering. Chief Justice Paul Newby wrote: “Our Constitution expressly assigns the redistricting authority to the General Assembly subject to express limitations in the text.” In other words, political distortion of the districting process, even extreme manipulation which results in substantial and enduring handicapping of the electoral system, is just fine. The justices essentially offered a green light for future incumbent machinations. A metaphorical get out of jail free card for cheating politicians. Justice Anita Earls thundered in dissent that the ruling “stripped” North Carolina voters of the right to choose their elected officials and “demolished the Court’s standing as an independent check on the excesses of the other two branches of government.” But Newby wasn’t going to let any dissenting voices disturb him. He was on a partisan mission. And he delivered like a champion.
Ironically perhaps, the state court ruling will likely derail the momentous gerrymandering case presently being considered by the United States Supreme Court (Moore v. Harper) since our justices have now forsworn authority over political gerrymandering cases. One can almost hear one activist, partisan Republican justice, Samuel Alito, complaining that the ambitions of another activist, Republican justice, Paul Newby, are cramping his style.
Next, the justices used the same unprecedented rehearing maneuver to do in the earlier state Supreme Court voter ID decision. This time, they simply cast aside trial court and prior Supreme Court factual determinations that a new law implementing a voter identification requirement was meant to handicap black voters. Only months before, the high court had concluded that the provisions of S.B. 824 “were formulated with an impermissible intent to discriminate against African Americans.” The General Assembly had chosen, intentionally, to pass a law “that required the specific IDs black voters disproportionately lack.”
Now, though, the new judges said such pesky showings of motivation didn’t matter. Justice Phil Berger Jr., the Senate majority leader’s son, explained: “The people of North Carolina overwhelmingly support voter identification and other efforts to promote greater integrity and confidence in our elections,” Issues of racial “intention” explored by his predecessors were mere efforts of “judicial sleight of hand.” The legislature’s “enactment of law,” Berger declared, “is the sacrosanct fulfillment of the people’s will.” Man, “sacrosanct.” And so, North Carolina’s ID law would be resurrected. Phil Berger Sr. lauded his son’s bold steps to combat “the political whims of left-wing Democrats.” Justice Berger’s opinion concluded, mightily, that “no court exists for the vindication of political interests.” Really. It came across like a headline from The Onion.
Finally, the Republican jurists ran the table by reversing a lower court decision extending voting rights for those convicted of a crime. The prior ruling had determined that electoral participation should be restored under the North Carolina Constitution once a prison term had been served, rather than waiting for any period of probation or post-release supervision to be completed. Accordingly, 55,000 North Carolinians were made newly eligible to vote. Again, findings of racial disparity and purpose were cast aside as the justices overruled the voting rights restoration. Justice Trey Allen wrote: “Our Constitution ties voting rights to the obligation that all citizens have to refrain from criminal misconduct.” For yet a third time, the new North Carolina Supreme Court debased a fundamental human right and eagerly cast aside norms of appellate review to pull it off. They were on a roll. The State Board of Elections immediately took steps to exclude tens of thousands of Tar Heels from the voter rolls.
For North Carolinians working to preserve their threatened democracy, there is an additional component of these rulings that antagonizes. Chief Justice Newby and his Republican team claim these decisions represent an essential course correction, a returning to principle and a steady assurance of an appropriate separation of powers. Despite trashing procedural norms, brutally discarding stare decisis, changing newly minted results merely because the membership of the court had been altered at the ballot box, and frontally assaulting the foundations of equality and democratic governance, the Republican justices claimed, with seemingly straight faces, to occupy the high ground. Justice Berger was explicit:
This Court has traditionally stood against the waves of partisan rulings in favor of the fundamental principle of equality under law. We commit to that fundamental principle and begin the process of returning the judiciary to its rightful place as ‘the least dangerous branch’… Our state courts follow the law, not the political winds of the day.
The Chairman of the N.C. Republican Party, Michael Whatley, got the memo. He explained, unembarrassed: “this is a great day for the rule of law…these rulings are a big step toward restoring respect for the Constitution and taking politics out of the courtroom.”
Such statements are beyond rich. To mark Aril 28 as a paean to the rule of law in North Carolina is, at the least, ignoble. It’s hard to see how you could show greater disdain for the rule of law than by nixing final judicial rulings just because new Republicans came on the court. To claim fealty “to the fundamental principle of equality under law” as the justices welcomed race discrimination, crushed fair political participation and entrenched partisanship is perhaps even worse. To declare that the North Carolina Supreme Court aims “to take politics out of the courtroom” is well, I can’t say it in print. As a Tar Heel, I can report that many will support these decisions and many will oppose them. But no one in North Carolina believes they aren’t political.