The North Carolina supreme court heard oral arguments on Tuesday in a major gerrymandering case that could have significant implications for US voting rights.
In a highly unusual move, the North Carolina court appears poised to overrule itself and get rid of congressional and state legislative districts it approved last year. The GOP-drawn map that was struck down could have produced a 11-3 advantage for Republicans in the congressional delegation. The one that replaced it was far less advantageous to the GOP and wound up producing a 7-7 split in the 2022 midterm elections. The court’s decision would probably allow Republicans to get a more advantageous map back in place.
Demonstrators gathered outside the state supreme court in Raleigh on Tuesday as the justices heard oral arguments in the case, Harper v Hall. Much of the back-and-forth at the hearing focused on whether there were metrics the court could use to measure partisan gerrymandering. Phil Strach, a lawyer for the legislature, argued that because there were no clear metrics, it was not something the court could regulate.
Anita Earls, a Democrat on the court, pushed Strach to explain whether that meant the legislature could essentially do whatever it wants when it comes to drawing districts. If the state legislature were to adopt a rule that explicitly said any congressional plan had to result in an 11-3 advantage for Republicans, she asked, could the state supreme court do anything to stop it? Strach suggested it could not.
“Some things, your honor, are beyond the power of this court,” he said.
Lali Madduri, a lawyer representing those challenging the map, accused lawmakers of playing a “cynical game, hoping that this newly constituted court will reverse course and abdicate its fundamental duty of judicial review”. Sam Hirsch, another lawyer for the challengers, said that an effort to impose new legislative districts could be unconstitutional since North Carolina’s constitution prohibits mid-decade redistricting for the state general assembly.
Republicans won control of the North Carolina supreme court last fall and the new 5-2 GOP majority granted a request from the legislature to reconsider its redistricting ruling last month. The court had only granted similar requests twice before in the last 30 years. US courts do not typically grant requests to overrule their own rulings absent a major change in the case. The only thing that changed in the North Carolina case was the makeup of the court, Earls wrote in a searing dissenting opinion earlier this year.
“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,” she wrote. “I write to make clear that the emperor has no clothes.”
That rehearing decision could have reverberations at the US supreme court, which is separately considering the case and could issue a decision that could upend US election law.
In December, lawyers for the legislature asked the justices to overrule the state court and endorse a fringe legal theory that would prohibit state courts from policing the drawing of congressional districts and other federal election rules. Such a ruling from the US supreme court would upend US election law, removing state courts from policing federal elections. Earlier this month, the US supreme court asked for briefing on how the decision to rehear the case in North Carolina affected its own authority to issue a ruling.
In addition to the redistricting case, the North Carolina supreme court is also set this week to rehear a previous decision striking down the state’s voter ID law.
