The rehearings this week not only threaten free and open elections, but also undermine the integrity of the state’s highest court, voting rights groups say.
The North Carolina Supreme Court is set to hear two major voter-access cases next week that will establish whether voter ID mandates are constitutional and whether state lawmakers can draw election maps that all but ensure they stay in power.
That’s because the court already gave the final word on those cases three months ago.
But the 2022 midterm elections flipped the political makeup of the court and the new Republican-controlled court agreed in an unprecedented move last month to rehear these cases.
Holding rehearings so soon after the original decisions not only threaten free and open elections, voting rights groups say, but also undermine the integrity of the state’s highest court.
If court decisions are no longer binding precedent, but simply extensions of partisan whims, advocates ask, then what good is the separation of powers?
Here’s a look at the specific cases and what rehearing them could mean.
- Holmes v. Moore, (the Voter ID case). The Democratic-controlled court ruled in Dec. 2022 that the state’s voter ID law was unconstitutional because legislators intentionally wrote it to discriminate against Black and brown voters. The 4-3 decision fell on party lines. The court will rehear this case on Wednesday, March 15.
The law at issue is a 2018 requirement that voters present a photo ID in order to vote. The law articulated the forms of acceptable ID, including what would have been a new form of identification that each county board of elections would have to provide free of charge to any registered voter who asked for it.
But several studies across the country have shown that voters of color are less likely to have a photo ID and that ID requirements have a disproportionate effect on Black and Latino voters.
The Republican controlled legislature, voting rights groups say, pushed for the ID requirement to deliberately reduce the turnout of voters of color, who more often prefer Democratic candidates.
Several groups brought lawsuits immediately after the ID requirement became law.
Last year’s NC Supreme Court ruled that the legislators had indeed enacted the voter ID requirement specifically to obstruct free access to Black voters—blatant discrimination expressly forbidden by the state constitution, and the US constitution for that matter.
“The guarantee of equal protection of the laws means that a law enacted with the intent to discriminate on the basis of race is unconstitutional even if no voter ultimately is disenfranchised,” the court’s majority wrote in its decision.
But when the Supreme Court flipped from Democratic to Republican majority, GOP lawmakers in the state asked it to take another look, arguing that the previous iteration of the court had made fundamental errors in “law and fact,” two of the stated metrics for rehearing a case.
What were the errors in law in fact, argued by lawyers for the GOP?
For one, they argued, the court failed to “to accord the General Assembly a presumption of good faith,” as required by law.
“The record makes clear,” the GOP wrote in court filings, “that the General Assembly acted in good faith and with no discriminatory intent of any kind. Election legislation in North Carolina is often contentious and partisan. But the Republican supermajority worked closely with Senator Joel Ford, an African American Democrat, who co-sponsored the bill; adopted the majority of amendments offered by Democrats; obtained four other Democratic votes for the bill; and otherwise engaged with Democrats every step of the way, garnering thanks even from the bill’s opponents.”
If last year’s Supreme Court did err in these matters of fact and law, however, then so did the multiple other courts that ruled against the state’s voter ID mandates, including a federal appeals court that ruled against a separate but similar law in 2013.
In that case, the federal appeals court ruled that Republican lawmakers wrote the ID provisions with “almost surgical precision” to hinder Black voters.
- Harper v. Hall, the partisan gerrymandering case. The court’s prior 4-3 decision fell on party lines. The court will rehear this case on Tuesday, March 14.
Last year’s court also ruled that new state Senate districts used in November’s midterm elections — which Republicans drew following the 2020 census as part of the once-a-decade redistricting process — were engineered to help Republicans maintain power in a competitive state and violated the state constitution.
Independent analysis of the maps, for example, showed that the maps would have given Republicans a partisan advantage much larger than the state’s racial and partisan demographics can justify.
The court ordered the legislature to redraw the districts this year.
Lawyers for the GOP, however, said that only the state legislature has the authority to decide the particulars of its elections and that they can do so however they see fit. So even if the maps were overtly partisan, Republicans argue, the state’s highest court has no say whatsoever in how these districts are drawn.
Next week the new NC Supreme Court will start the process all over again.
The two remaining Democrats on the court objected to the decision to rehear these cases.
In her dissent, Justice Anita Earls warned that a court deciding to rehear a case just weeks after an initial ruling, with no intervening changes to law or evidence and no justification, could harm the court’s reputation for impartiality and show that the justices are political actors.
“Going down this path is a radical departure from the way this Court has operated, and these orders represent a rejection of the guardrails that have historically protected the legitimacy 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,” Earls added.
“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.”