NC Supreme Court says judges can't stop partisan gerrymandering

The Republican majority on the North Carolina Supreme Court said Friday that partisan gerrymandering is legal in the state, opening the door for the legislature’s GOP majority to draw districts that help lock in power at the statehouse and contribute to Republican power in Congress.

The state’s high court also decided two long-running voting cases Friday: One dealing with the restoration of voting rights for felons and the other one of the state’s long-running voter ID cases.

The voter ID and gerrymandering decisions reverse opinions issued just last year by the state Supreme Court. In between, North Carolina voters flipped the court’s majority from Democratic to Republican. Friday’s opinions broke on party lines.

Chief Justice Paul Newby said the state’s judiciary doesn’t have the power to weigh in on partisan gerrymandering, and even if it did, the issue relies too much on the eye of the beholder to be decided by the courts.

“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text,” Newby wrote in an opinion joined by the court’s other Republican justices, including Justice Phil Berger Jr., whose father is the Senate’s top Republican, and Justice Tamara Barringer, a former state Senator.

“Those [constitutional] limitations do not address partisan gerrymandering," Newby wrote. "It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch. Furthermore, were this court to create such a limitation, there is no judicially discoverable or manageable standard for adjudicating such claims. The constitution does not require or permit a standard known only to four justices.”

The high court's two Democrats, Justices Michael Morgan and Anita Earls, a former civil rights attorney who often crusaded against GOP redistricting and voter ID laws before being elected to the bench, dissented.

“Unchecked partisan gerrymandering allows the controlling party of the General Assembly to draw legislative redistricting plans in a way that dilutes the voting power of voters in the disfavored party,” Earls wrote in the dissent. ”In so doing, those who hold political power can guarantee that they remain in office for decades, making them impervious to the popular will. … This is not how democracy should function.”

In a separate decision, the GOP majority said North Carolina's voter ID law is constitutional. Like the gerrymandering decision, this overturns a decision the state Supreme Court reached last year, before the November elections flipped a Democratic majority on the court to a Republican one. The voter ID issue might not be decided for good, though, because two other cases targeting the law remain pending.

The State Board of Elections, though, said Friday it would start working immediately to implement the law for municipal elections scheduled in 2023. That would include a voter education campaign, the board said in a statement.

The redistricting case, Harper v. Hall, drew national attention, largely because it spawned a case at the U.S. Supreme Court that could decide gerrymandering rules nationwide. Friday's state Supreme Court decision may moot those national proceedings, though.

Republicans praised the rulings Friday, saying the court's GOP majority reversed years of Democratic overreach in political cases before the court. Speaker of the House Tim Moore noted that voters amended the state constitution five years ago, but implementation had been blocked. Friday's decisions "have ensured that our constitution and the will of the people of North Carolina are honored," Moore said, adding a promise to redraw state House, Senate and congressional maps.

Lawmakers are expected to do that in a legislative session later this year and will now do so less encumbered by the threat of lawsuits that, in the past, forced repeated redraws.

The state's U.S. House delegation is split now 7-7 between Republicans and Democrats. Before a series of lawsuits and court-ordered redraws balanced things out, Republicans held 75% of delegation seats. In the General Assembly, Republicans hold veto-proof majorities despite court-ordered redraws ahead of the 2022 elections, and the coming redraws may boost those margins.

A congressional swing could prove crucial nationally, given the GOP's narrow majority in the U.S. House.

"What could potentially come out of North Carolina is a doubling of that majority for the Republicans, just out of North Carolina," Catawba College political scientist Michael Bitzer said. "A swing of at least four seats could build a little bit of a cushion for the Republican majority in the U.S. House."

Senate Republican Leader Phil Berger said the plaintiffs in these cases were trying to manipulate the constitution "to achieve policy outcomes that could not be won at the ballot box."

"Today's rulings affirm that our constitution cannot be exploited to fit the political whims of left-wing Democrats," he said.

Democrats said the ruling was just another partisan decision from the court's new majority.

"The Republican state Supreme Court has ignored the constitution and followed the marching orders of the Republican legislature by declaring open season for their extreme partisan gerrymander and is destroying the court's reputation for independence," Gov. Roy Cooper said in a statement. "Republican legislators wanted a partisan court that would issue partisan opinions and that's exactly what this is."

House Democratic Leader Robert Reives, D-Chatham, said the decision "further erodes the trust North Carolinians have in fair elections." Attorney General Josh Stein, a Democrat running for governor in 2024, called the decision "a devastating blow to democracy."

The voter ID case is Holmes v. Moore. Plaintiffs there argued that the state's photo ID requirement discriminated against minority voters who are less likely to have photo ID. Writing for the majority, Berger said they failed to prove beyond a reasonable doubt that the rules were enacted with discriminatory intent or that the law "produces a meaningful disparate impact along racial lines." Berger also noted exceptions in the state's voter ID law, which allow people to cast ballots without ID if they sign an affidavit testifying that they are who they say they are.

"This law is one of the least restrictive voter identification laws in the United States," he wrote. "Even if a registered voter still somehow fails to obtain or otherwise possess an acceptable form of identification, the law permits him or her to cast a provisional ballot that will be counted so long as they do not provide false information in the reasonable impediment affidavit. Essentially, North Carolina’s photo identification statute does not require that an individual present a photo identification to vote."

Morgan wrote the dissent in the case, saying the Republican majority's decision to rehear the case after the Democratic majority decided it months before "spoke volumes."

"Rather than abide by that lofty philosophy which has always permeated the fabric of this court, the majority instead prefers to dismember both state and federal jurisprudence in order to demonstrate its alacrity to brandish its audacity to achieve its purposes, all while claiming to act in the name of judicial restraint," Morgan said in his dissent, which Earls joined.

The two Democratic justices also said the majority failed to take the state's history of racism into proper account in determining whether the voter ID law discriminates. They said Republicans needed to strike a better "equilibrium between presuming legislative good faith, while remaining cognizant of the insidious nature of discriminatory intent."

In the felon voting case, Community Success Initiative v. Moore, the court reversed a trial court's finding that allowed convicted felons to vote once they finished their prison sentence. The Supreme Court ruled that felons must complete all aspects of their sentence, including probation and/or payment of fines or restitution, in order to register and vote. The court's Republican said this rule is not racist, as plaintiffs alleged.

"The evidence does not provide that legislators intended their reforms ... in the early 1970s to disadvantage African Americans, nor does it substantiate plaintiffs' other constitutional claims," Justice Trey Allen wrote for the majority. "It is not unconstitutional to insist that felons pay their debt to society as a condition of participating in the electoral process."

Daryl Atkinson, a lead attorney on the case, promised to keep pushing the issue, but before the legislature instead of through the courts.

“Today the newly seated North Carolina Supreme Court silenced the voices of more than 56,000 people — disproportionately Black voters — living in communities all across North Carolina, paying taxes, an equal voice in our democracy," Atkinson said in a statement. "But, we are not deterred. Tomorrow, the fight for justice continues."

WRAL reporter Brian Murphy contributed to this report.