". . . and having done all . . . stand firm." Eph. 6:13


In Reversal, N.C. Supreme Court Upholds Photo ID, Legislature-Drawn Maps

April 28, 2023

The North Carolina Supreme Court on Friday issued two opinions upholding the legislature’s election laws and reversing the court’s previous decisions. The reversals come after Republicans flipped the two seats on the seven-member court up for election in 2022, creating a 5-2 majority.

In Harper v. Hall, the new Republican majority upheld the legislature-drawn map of congressional districts, which had been challenged as a partisan gerrymander and replaced by a court-drawn map for the 2022 election. It took the rare step of rehearing a case it had ruled upon as recently as December (before the new justices were seated), which it may do “when ‘the court has overlooked or misapprehended’ a point ‘of fact or law.’” The court held that “partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution,” overruling its opinion in Harper I and withdrawing and superseding its opinion in Harper II, which had both interfered with the legislature’s drawing of district boundaries.

North Carolina Governor Roy Cooper (D) responded to the opinion, “The Republican State Supreme Court has ignored the constitution and followed the marching orders of the Republican legislature by declaring open season for their extreme partisan gerrymandering and is destroying the court’s reputation for independence.”

In its opinion, the court appealed to “fundamental principles,” including “all political power resides in the people,” “the people exercise that power through the legislative branch, which is closest to the people and most accountable through the most frequent elections,” “the constitution is interpreted based on its plain language,” and “the will of the people is achieved when each branch of government performs its assigned duties.”

Based upon these principles, the court excoriated the four-justice Democratic majority that had twice struck down the state legislature’s map. As the court described it, in the first opinion, “four justices held that partisan gerrymandering presents a justiciable claim,” applying “certain political science tests” that they said “could reliably identify unconstitutional partisan gerrymandering.” In the second opinion, “the same four members of this Court said that the General Assembly, three former jurists serving as Special Masters, the three-judge panel, and three members of this Court — in total, nine current and former jurists — all wrongly applied” their approach. Therefore, the court decided to “reconsider whether a standard that only four justices know and understand, that is riddled with policy choices, and that is not mentioned in our constitution is truly judicially discoverable and manageable.”

“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering,” the court concluded.

North Carolina’s current delegation in the U.S. House of Representatives currently consists of seven Democrats and seven Republicans. Under the map approved by the legislature — with bipartisan input, the court noted — most districts will remain largely the same, but a handful would see slight shifts to Republicans’ advantage, according to FiveThirtyEight’s analysis. The four incumbents that would be most affected by the decision are:

  • Kathy Manning (D-N.C. 6th), whose Greensboro district will shift from D+9 to R+3
  • David Rouzer (R-N.C. 7th), whose Fayetteville/Wilmington district will shift from R+16 to R+3
  • Wiley Nickel (D-N.C. 13th), whose Raleigh-area district will shift from R+3 to R+6
  • Jeff Jackson (D-N.C. 14th), whose Charlotte-area district will shift from D+11 to R+5

The U.S. Supreme Court accepted an appeal of the Harper II decision and heard arguments in December, before this major development in the case. If the Supreme Court chooses to issue a decision, it could influence the final outcome.

In Holmes v. Moore, the North Carolina Supreme Court upheld a law (SB 824) detailing photo ID requirements to make voting easier and more secure, which a lawsuit claimed violated the state constitution on six different points, and specifically discriminated against black citizens. As in the previous case, the court here withdrew a previous opinion issued by the former Democratic majority that “overlooked or misapprehended relevant points of fact and law” and reversed and remanded the issue to a lower court.

The photo ID law was first challenged in federal court. The district court issued an injunction against the law, but the Fourth Circuit reversed its decision in NAACP v. Raymond, concluding that “‘the district court improperly reversed the burden of proof and disregarded the presumption of legislative good faith,’ and that when the correct legal principles were applied to the plaintiffs’ arguments, ‘the remaining evidence in the record fails to meet the Challengers’ burden,’” summarized the court. When the law was subsequently blocked by a panel of state judges, its advocates argued that “the panel improperly reversed the burden of proof and disregarded the presumption of legislative good faith.”

“After an election that would change the composition of this Court,” the outgoing Democratic majority “issued an opinion affirming the lower court’s issuance of the injunction,” wrote the court. “The majority claimed to apply federal precedent but declined to follow the Fourth Circuit’s guidance from Raymond.”

The photo ID resulted from a constitutional amendment approved by voters in 2018 “to require that ‘[v]oters offering to vote in person shall present photographic identification before voting,’” explained the court. The legislature then passed SB 824, “one of the least restrictive voter identification laws in the United States,” which accepted 11 forms of photo ID, including a free voter ID card usable for up to 11 years. Yet its detractors heavily manipulated racial data to make it appear racist, and the lower courts went along with the ruse, the court concluded.

In fact, the court found that the lower court’s standard for what the legislature was required to do contradicted a previous precedent, leaving “no option available to the legislature that could lead to implementation of a voter identification measure.” It accused the trial court of seeing “itself as possessing the power to second-guess the legislature’s authority over its own procedures, thereby ‘prevent[ing] another branch from performing its constitutional dut[y].’”

“The people of North Carolina overwhelmingly support voter identification and other efforts to promote greater integrity and confidence in our elections. Subjective tests and judicial sleight of hand have systematically thwarted the will of the people and the intent of the legislature,” concluded the court. “But no court exists for the vindication of political interests, and judges exceed constitutional boundaries when they act as a super-legislature.” The court pledged to stand “against the waves of partisan rulings in favor of the fundamental principle of equality under the law … and begin the process of returning the judiciary to its rightful place as ‘the least dangerous’ branch.”

“This Court is yet again confronted with ‘a partisan legislative disagreement that has spilled out . . . into the courts,’” they summarized. “This Court once again stands as a bulwark against that spillover, so that even in the most divisive cases, we reassure the public that our state’s courts follow the law, not the political winds of the day.”

The North Carolina Republican Party applauded the rulings, saying that they “reinstate common-sense election integrity protections and restore the constitutional framework after years of partisan subversion by radical Democrats on the bench.”

“A strong majority of North Carolina voters voted to replace those judicial activists last fall,” noted the NC GOP. In November 2022, Richard Dietz (R) defeated Lucy Inman (D) by 5.18% of the total vote for North Carolina Supreme Court Seat Three, while Trey Allen (R) defeated incumbent Sam Ervin IV (D) by 4.78% of the total for North Carolina Supreme Court Seat Five. In addition to the two supreme court seats up for election, Republicans also swept four seats up for election on the North Carolina Court of Appeals.

“This decision is a clear example that elections truly do have consequences,” FRC Action Vice President Brent Keilen told The Washington Stand. “At the heart of the issue is who really should have the authority to make the decisions about redistricting. The new conservative majority believes that the state legislature is the appropriate group to make these types of decisions — not the courts.”

Joshua Arnold is a senior writer at The Washington Stand.