Newly-elected conservatives on NC supreme court to redecide Democratic cases
North Carolina voters elected two new Republican state supreme court judges in November, ousting two Democratic justices and tilting the balance of the court from 4–3 Democratic to 5–2 Republican. Now, the newly-conservative court announced it will rehear—and likely overturn—cases decided by the former Democratic majority.
The court had been a bulwark against the GOP-controlled legislature’s attempts to solidify their power through undemocratic means. In February 2022, the Democratic majority struck down congressional and legislative maps as partisan gerrymanders violating the state constitution, ruling that the legislature must show through statistical analyses that there’s “a significant likelihood that the districting plan will give the voters of all political parties substantially equal opportunity to translate votes into seats” in elections. Later last year, the same justices ruled that the Republican-controlled legislature may not amend the state constitution when they were elected based on district maps that were “unconstitutionally racially gerrymandered.” The legislature’s voter ID law, as a consequence, was thrown out.
- The Democratic-majority issued other rulings that irked conservatives in North Carolina, including an opinion limiting lengthy prison sentences for juvenile offenders and another ordering the state to adequately fund public education.
The new Republican judges, Richard Dietz and Trey Allen, each won their elections by roughly 4.5 percentage points. Dietz, a lawyer and former law clerk, defeated Democratic incumbent Lucy Inman 52.6% to 47.4%, with approximately 190,000 more votes. Attorney and professor Allen defeated Democratic incumbent Sam Ervin IV 52.2% to 47.85%, with 164,000 more votes. Roughly half of registered voters did not participate in the state’s judicial elections.
The new Republican majority announced last Friday that the court will rehear two major voting rights cases that it had previously decided: one nullifying voter ID requirements and another striking down partisan gerrymanders. Legal commentators observed that the only reason to rehear the cases is to reach a different conclusion that better fits the politics of the conservative judges.
- The voter ID case, Holmes v. Moore, challenged Senate Bill 824 for racially discriminating against African American voters. According to evidence presented at trial, African American voters are approximately 39 percent less likely than white voters to have the required ID. Justice Anita Earls, writing for the Democratic majority, found that “S.B. 824 was enacted with the discriminatory intent to target African-American voters who were unlikely to vote for Republican candidates.”
- The gerrymandering case, Moore v. Harper, has already reached the U.S. Supreme Court, garnering significant press coverage for advancing an extreme philosophy known as the independent state legislature theory. The North Carolina supreme court previously ruled that while “the task of redistricting is primarily delegated to the legislature, it must be performed ‘in conformity with the State Constitution.’” Therefore, the state court has a role in reviewing the legislature’s decisions; the legislature is not without checks and balances.
In deciding to rehear the two above cases, the conservative majority only said that the Republican state legislators’ petition for a rehearing made “a satisfactory showing that the [previous] opinion may be erroneous.” No other explanation was given.
One of the two remaining Democratic judges, Justice Anita Earls, had much more to say in dissent, calling the decision to rehear the cases a “radical break with 205 years of history.”
It has long been the practice of this Court to respect precedent and the principle that once the Court has ruled, that ruling will not be disturbed merely because of a change in the Court’s composition. Indeed, data from the Supreme Court’s electronic filing system indicate that, since January 1993, a total of 214 petitions for rehearing have been filed, but rehearing has been allowed in only two cases…
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. Now, approximately one month since this shift, the Court has taken an extraordinary action: It is allowing rehearing without justification.
More troubling still, today this Court grants not one but two petitions for rehearing. See Holmes v. Moore, 2022-NCSC-122 (Feb. 3, 2023) (order on motion for rehearing) [hereinafter Holmes Order]. This means that in a single day, the majority has granted more petitions for rehearing than it has over the past twenty years. There is nothing constitutionally conservative about the Court’s decisions to allow rehearing in these cases…
The consequences of this Court’s orders are grave. The judiciary’s “authority . . . depends in large measure on the public’s willingness to respect and follow its decisions.” Williams-Yulee v. Florida. Bar, 575 U.S. 433, 446 (2015). The public’s trust in this Court, in turn, depends on the fragile confidence that our jurisprudence will not change with the tide of each election. Yet 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. Because this Court’s decision today is an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve “impartially,” “without favoritism to anyone or to the State,” I dissent.
The decision to rehear Moore v. Harper is also notable considering it could make the U.S. Supreme Court case moot. However, remember that the SCOTUS arguments did not appear to trend in Republicans’ favor. The state legislature may be betting on a more favorable ruling now that conservatives control the state court — giving up on enacting the independent state legislature theory at the national level, but going all in at the state level.