RALEIGH, N.C. — Legal briefs filed Friday by plaintiffs’ attorneys in Harper v. Hall and Holmes v. Moore responded to North Carolina Republican lawmakers’ unprecedented efforts to undermine the state Supreme Court’s landmark rulings against discriminatory gerrymandering and voter ID through rehearings of these decisions.
The briefs address the very same arguments by the legislators that the Court rejected mere months ago and highlight how legislative defendants have lodged poorly veiled attempts in each matter to have a second, unfettered bite at the apple following the Court’s change in composition this year. As noted by Associate Justice Anita Earls, the decision to rehear these two matters is a “radical break with 205 years of history” and exceedingly rare: just two cases had previously been granted rehearing in the past 30 years.
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. Holmes held North Carolina’s 2018 voter ID law (S.B. 824), approved by a Republican-led supermajority in a lame-duck session, was racially motivated.
In Harper, Legislative Defendants have not only asked for rehearing of the December 2022 remedial order in that matter, but have also taken the further unprecedented step of asking this Court to overrule a decision from February 2022, Harper I, that is long past the time for rehearing under applicable court rules.
But as set forth in Plaintiffs’ supplemental briefing, Legislative Defendants “have not discovered additional historical materials elucidating the application of the contested constitutional provisions. Nor have they identified any argument that the Court failed to consider—and refute—in its 223-paragraph Harper I opinion. There is no exception to the rule of stare decisis when a court changes composition. Indeed, if anything, the rule [which states that courts will stand by precedent when making decisions] applies even more strongly in such situations.”
Common Cause is represented in Harper by Southern Coalition for Social Justice and pro bono co-counsel Hogan Lovells.
“Just last year, the state Supreme Court set a clear precedent that partisan gerrymandering violates the constitutionally protected freedoms of North Carolinians,” said Bob Phillips, executive director of Common Cause North Carolina. “Since that landmark ruling against illegal gerrymandering, the facts of our case have not changed. Our Constitution has not changed. It would be a radical departure from legal norms for a new majority on the court to suddenly upend that established precedent at the cynical request of partisan politicians. Such a reversal could cause lasting damage to public trust in the impartiality of justice.”
In Holmes, the state’s high court already decided in December to strike down lawmakers’ most recent iteration of a photo voter ID law as an unconstitutional measure passed in part to discriminate against African American voters.
“Abandoning that ruling now would require this Court to err, either by adopting an incorrect interpretation of [the controlling legal standard] or by usurping the trial court’s function and disregarding its amply supported factual findings,” the Holmes brief states. “Withdrawing the 16 December Opinion would also show that the value and durability of the Court’s precedents depends on little more than the composition of its membership, signaling to the citizens of North Carolina that the Court’s rulings will endure only as long as the next election cycle.”
That case was originally filed by Southern Coalition for Social Justice and pro bono co-counsel from Paul, Weiss, Rifkind, Wharton & Garrison LLP, in December 2018.
“To preserve the impartiality of the judiciary and the People’s faith in its judgements, it is imperative that the Court adhere to its prior rulings and reject this political gambit by legislative leadership,” said Jeff Loperfido, Interim Chief Counsel of Voting Rights at Southern Coalition for Social Justice.
The plaintiffs in Holmes also filed motions to disqualify Justice Phil Berger Jr. and Justice Tamara Barringer under the North Carolina Code of Judicial Conduct — the former 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, and the latter due to her personally serving in the legislature at the time of the passage of S.B. 824 and also voting repeatedly in favor of the challenged bill.
The North Carolina Supreme Court will hear oral arguments in Harper at 12:45 p.m. March 14 and in Holmes at 12:45 p.m. March 15.
The Southern Coalition for Social Justice, founded in 2007, partners with communities of color and economically disadvantaged communities in the South to defend and advance their political, social, and economic rights through the combination of legal advocacy, research, organizing, and communications. Learn more at southerncoalition.org and follow our work on Twitter, Facebook, and Instagram.
Common Cause North Carolina is a nonpartisan grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest and accountable government that serves the public interest; promote equal rights, opportunity and representation for all; and empower all people to make their voices heard in the political process.