RALEIGH, N.C. — The North Carolina Supreme Court signaled today it will not provide a check on legislative efforts to discriminate against resident voters, vacating two prior decisions that protected voters against partisan gerrymandering in voting maps and racially discriminatory voter ID.
The state’s highest court allowed decisions in Harper v. Hall and Holmes v. Moore, issued in December of 2022, to be reheard following a change in the composition of the Court in January 2022, a rare and unprecedented step.
The Court also issued a separate decision revoking voting rights in another case for individuals with a felony conviction. In all three cases, the justices were split 5-2 along party lines to toss extensive factual findings from multi-week trials in the lower courts — a rarity saved for exceptional circumstances, of which none of the cases had.
No protections from partisan gerrymandering
Harper is a case brought by Common Cause North Carolina after lawmakers partisan gerrymandered legislative and Congressional maps to give Republicans an edge at the disproportionate expense of Black voters. Justice Paul Newby authored today’s decision.
Justices ruled the high court did not have jurisdiction to weigh into partisan matters because the state Constitution contains no mention of partisanship in regards to elections. They granted GOP lawmakers’ request to not only reverse its December 2022 decision (Harper II) protecting voters from partisan gerrymandering but to also overturn its February 2022 decision (Harper I) arguing the standard articulated in that matter was flawed.
The Court also gave lawmakers power to redraw legislative and Congressional maps without any limitations on extreme partisan gerrymandering.
“Today’s decision marks a concerning and dramatic departure from the historic and important role our State Courts have played in protecting voters and providing a check on the Legislative branch,” said Hilary Harris Klein, Senior Counsel for Voting Rights at Southern Coalition for Social Justice (SCSJ). “Checks and balances are fundamental to our system of government, and we share the concern of the dissent that ‘the majority has already repeatedly revealed itself to be on a mission to pursue the agenda of this select few in the legislature.’ Like our client Common Cause, we will continue to pursue free and fair elections for all North Carolinians.”
Common Cause North Carolina is represented in Harper by Southern Coalition for Social Justice (SCSJ) and co-counsel Hogan Lovells.
“This Supreme Court ruling will go down as one of the gravest assaults on democracy ever in North Carolina. Now, extreme partisan gerrymandering has been legalized and it will be weaponized against voters. That’s wrong,” said Bob Phillips, executive director of Common Cause North Carolina. “Undoubtedly, the justices who wrote this shameful decision know it’s wrong, as do the self-serving legislators who embrace gerrymandering. Today, we are seeing our constitutional protections surrendered to the whims of extremist politicians. We will not give up. We will oppose any attempt by politicians to engage in racist and partisan gerrymandering. The people of North Carolina will not be silenced.”
Justice Anita Earls wrote a 71-page dissent in Harper, saying the decision removes the Court’s ability to protect residents’ basic rights guaranteed in the Constitution.
“Despite its lofty prose about the need for principled adherence to the state Constitution, the majority follows none of these principles today,” Earls wrote. “Nor does the majority even pay passing reference to the anti-democratic nature of extreme partisan gerrymandering. These efforts to downplay the practice do not erase its consequences and the public will not be gaslighted.”
Because Harper is the underlying case to the U.S. Supreme Court case Moore v. Harper, justices at the federal level asked parties in early March to submit additional briefs on whether or not the highest court still has jurisdiction in the case. Common Cause, through its attorneys at SCSJ and Hogan Lovells, argued that the U.S. Supreme Court is still the proper venue to decide this important case about the future of checks and balances in our election processes.
The U.S. Supreme Court has not yet responded to those briefs, but Common Cause remains hopeful the Court will reject the fringe independent state legislature theory presented in Moore.
“Today, in a highly partisan decision, the North Carolina Supreme Court shredded the state’s constitutional protection of free and fair elections, siding with power-hungry politicians to strip every voter of the right to cast a ballot without political manipulation, and taking away our freedom to determine the future of our families and our neighborhoods,” said Kathay Feng, Vice President of Programs for Common Cause. “We now await the U.S. Supreme Court’s decision in Moore v. Harper to determine if it will uphold the checks and balances enshrined in the U.S. Constitution and state constitutions, or if it will give absolute power to state politicians to manipulate our federal elections and undermine our votes.”
Racist return to voter ID
Justice Phil Berger Jr. authored the decision reversing Holmes v. Moore, which held in its December 2022 decision that North Carolina’s 2018 voter ID law (S.B. 824), approved by a Republican-led supermajority in a lame-duck session, was racially motivated.
The plaintiffs in Holmes filed a motion to disqualify Berger under the North Carolina Code of Judicial Conduct due to the fact that his father, Senate President Pro Tem Phil Berger, is a defendant in the matter and repeatedly voted in favor of S.B. 824. That motion was denied.
Today’s decision restores S.B. 824 and abandons the landmark decision in Arlington Heights, which for nearly 50 years has provided a legal standard designed to suss out discriminatory intent in the absence of direct or “smoking gun” evidence. Justices alluded to this possibility in the Holmes rehearing in March by asking whether there were racist statements in the trial court record from legislators when they passed S.B. 824 and indicated that it would be required to show the legislature acted with discriminatory intent.
The decisions in both Harper and Holmes signals a broader move away from the North Carolina Constitution that threatens the individual rights of residents, which case law in the state directly contradicts.
“We fear that these two unprecedented decisions, along with Justice Berger’s refusal to recuse from matters in which his own father’s intent and actions were before the courts, will wreak havoc on public confidence in our courts and the rule of law,” said Jeff Loperfido, Interim Chief Counsel for Voting Rights at SCSJ. “We have kept this racist voter ID law off the books for over four years, and we have held safe and secure elections without it. Now that the law will go back into effect, we must work to make sure voters are fully informed on this drastic change to our elections and not disenfranchised by these unnecessary administrative and financial hurdles.”
The case was originally filed by SCSJ joined by co-counsel from Paul, Weiss, Rifkind, Wharton & Garrison LLP in December 2018. After losing this case and Harper in December 2022, GOP lawmakers in North Carolina petitioned the state Supreme Court to rehear both without any legal basis or claim — the only thing that had changed was the composition of the court after a recent election.
In a 36-page dissent in Holmes, Justice Michael Morgan noted the Court takes rehearings very seriously in order to keep the court out of partisan politics.
“Rather than abide by that lofty philosophy which has always permeated the fabric of this Court,” Morgan said. “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.”
As the state heads into election season, we urge legislators and election administrators to conduct a thorough and robust educational campaign ahead of this reinstatement.
Denial of right to vote
The North Carolina Supreme Court in a separate decision today revoked the voting rights of 56,000 North Carolinians with prior felony convictions who had completed their terms of incarceration. A trial court ruling last year found a 1973 state law unconstitutional because it made people convicted of a felony subject to property qualifications in order to vote.
Justices heard oral arguments February 2, 2023, in CSI v. Moore, a case brought by Community Success Initiative, Justice Served NC, Wash Away Unemployment, and the North Carolina Chapter of the NAACP, individual plaintiffs — represented by a collaborative legal team of Forward Justice, Arnold & Porter Kaye Scholer LLP, and Protect Democracy.
The decision today means those North Carolinians who were re-enfranchised to vote in 2022 will no longer be able to legally cast their ballot. Justice Trey Allen wrote the majority decision and said the “state Constitution ties voting rights to the obligation that all citizens have to refrain from criminal misconduct. as the reason for revoking those rights.”
In Justice Earls’ 55-page dissent, she states the majority decision perpetuates a shameful vestige of slavery by denying residents the right to vote.
“The majority believes that, as felons, they are not free even after their sentences are complete, they are merely felons for the rest of their lives,” Earls said. “Today, the Court again consigns a portion of the state’s population to a less than free status, unable to participate in the fundamental exercise of self-governance upon which democracy is based.”
SCSJ stands in solidarity with the plaintiffs in CSI and believes in the rights of all individuals to vote. Forward Justice has also invited all North Carolinians to attend Second Chance Lobby Day at 11 a.m. May 2 on the NC General Assembly lawn at 16 West Jones St. in Raleigh — plaintiffs in the case will be there to speak.
“Today’s ruling from the North Carolina Supreme Court endorses a view of democracy that allows for permanent second-class citizens,” said Jake Sussman, Interim Chief Counsel of Justice System Reform at SCSJ. “It strips away the right to vote for tens of thousands North Carolinians based on a law born out of and fueled by racism. North Carolina should do everything possible to ensure that all of its citizens can fully participate in the democratic process.”