The North Carolina supreme court agreed to rehear two major voting rights cases in recent days, an unusual move that one Democrat on the court bluntly described as a “power grab” by the new Republican majority.
The court will reconsider two recent rulings that struck down the state’s voter ID law and congressional districts. Both of those decisions were losses for Republicans, who both enacted the ID law and drew the districts to give their candidates a significant advantage in elections. The rulings came down when Democrats had a 4-3 majority on the court, but in November, Republicans flipped control of the court and now have a 5-2 advantage.
The court will rehear the cases in March. The decision could also upend a blockbuster case pending at the supreme court that would dramatically reshape US election law.
The unusual decision to rehear the cases is the latest in a series of rulings that underscore the increasingly powerful role state supreme courts are taking on in redistricting disputes. State supreme courts in Ohio and Wisconsin have also played critical roles in this issue recently.
Last year, the North Carolina supreme court court struck down state legislative districts as well as congressional plan that would have given Republicans control of 11 of the state’s 14 congressional districts. The map that was ultimately in place in November led to a 7-7 split in the seats. In December, the court struck down a law that would have required voters in the state to provide one form of acceptable photo ID, saying it was passed to discriminate against Black people.
Justice Trey Allen, a Republican elected last year, said on Friday that by choosing to rehear those cases, the court was “exercising our duty and authority to address alleged errors of law”.
But Anita Earls, one of two remaining Democrats on the court, harshly criticized that decision in a scathing dissent. Over the last 30 years, the court has received 214 requests to rehear cases and only granted two of them.
“Nothing has changed since we rendered our opinion in this case on 16 December 2022: the legal issues are the same; the evidence is the same; and the controlling law is the same. The only thing that has changed is the political composition of the court,” she wrote. “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.
“The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.”
Mitchell Brown, a senior attorney at the Southern Coalition for Social Justice, which challenged both the maps and the ID laws, said the rare decision to rehear the cases was “very strange”.
“The voting rights wins that we won, voters won in North Carolina have a good chance of being reversed both with voter ID and redistricting,” he said.
“If that’s the case that whoever is sitting in the seat can change the law on a whim and not respect precedent, then that’s going to make it hard for people to adjust their conduct to follow the law,” he added. “Because all they have to do is say we’ll follow the law now but we’ll do something different later.”
The decision to rehear also could have consequences in the US supreme court. In December, the court heard an argument from North Carolina Republicans who said that state courts did not have the constitutional authority to alter district boundaries or rules for federal elections. It’s an argument based on a novel legal theory, called the independent state legislature theory (ISL), and if the court were to endorse it, it would be a major boon for Republicans.
Because the state supreme court is now rehearing the case, the US supreme court could now decide that the issues before it are moot, punting the underlying issues into the future. Doing so would be a mistake, Richard Hasen, an election law expert at the University of California Los Angeles, wrote in a post for Slate. The underlying dispute over the power of state courts when it comes to federal elections is likely to keep coming up until the US supreme court says something clear about it. “It is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election,” he wrote.
J Michael Luttig, a well-respected former federal appellate judge, tweeted on Monday that the decision to rehear the case did not necessarily make moot the case before the US supreme court.
“For a state supreme court to overrule one of its decisions while it is pending imminent decision by the Supreme Court of the United States, would be an act of judicial and political hubris – not to mention disrespect for the U.S. Supreme Court – that I do not believe any state supreme court would do on the eve of the Supreme Court’s decision,” he tweeted.
Carolyn Shapiro, a professor at Chicago-Kent College of Law, also told NPR that the US supreme court could still issue a ruling on the case. The North Carolina supreme court could wait to issue a ruling in its case until after the US supreme court does.
“There’s a little bit of a game of chicken,” she said.
