The North Carolina Supreme Court’s new Republican majority weighed overruling a decision that struck down the state’s GOP-drawn voting maps as a partisan gerrymander on Tuesday, a rare rehearing that could shift a sweeping election law clash at the U.S. Supreme Court.
The case has also fueled accusations of partisanship in the state’s top court, which is elected in increasingly expensive campaigns. Republican state lawmakers argued the court’s previous 4-3 Democratic majority sped up their rulings against the GOP.
After Republicans in the midterm elections regained control of the court and the new 5-2 majority last month granted the GOP lawmakers’ request to rehear the dispute, Democrats have similarly attributed partisan motivations. It marked only the third time the court has granted a rehearing during the past 30 years.
“This court issued two landmark decisions recognizing that the North Carolina Constitution prohibits partisan gerrymandering that systematically dilutes some North Carolinians’ votes and requires that all voters have substantially equal voting power,” Lali Madduri, who represented the plaintiffs, said at Tuesday’s oral argument.
“Now, the legislative defendants play a cynical game, hoping that this newly constituted court will reverse course and abdicate its fundamental duty of judicial review,” continued Madduri, counsel at progressive election law firm Elias Law Group.
Although the court is technically only rehearing the second decision in the case, which is known as “Harper II” and involves maps to replace the invalidated ones, the Republican lawmakers want the court to also overrule its earlier decision, referred to as “Harper I,” that originally struck down the legislature’s maps last February.
Phillip Stratch, an attorney representing the GOP lawmakers, asserted that the court has no workable tool to adjudicate partisan gerrymanders and should instead leave map drawing to the legislature.
“Harper I claimed to divine the holy grail, a standard by which so-called ‘partisan gerrymandering’ could be measured and enforced by the courts. But as Harper II demonstrated, that was simply a fool’s errand,” said Stratch.
Tuesday’s oral arguments specifically involved North Carolina’s voting maps, but the rehearing impacts a closely watched U.S. Supreme Court case with major implications for elections nationwide.
After the GOP-drawn maps were struck down, the nation’s highest court agreed to consider a sweeping argument from the Republican lawmakers that would effectively hand state legislatures near-total authority in drawing congressional maps and setting federal election rules.
The Republicans lawmakers’ argument, known as the independent state legislature theory, contends that the federal Constitution prohibits state courts and constitutions from limiting legislatures’ power to regulate federal elections.
The justices were headed for a decision in Moore v. Harper by late June, but they have recently questioned whether they have authority to move ahead now that the state court is conducting a rehearing.
Legal experts suggest the justices may wait until the North Carolina justices issue their opinion before deciding what to do, because overruling Moore I may make the proceedings in Washington, D.C., moot. The parties are due to submit briefs explaining their views on the issue later this month.
At the oral argument, Justice Richard Dietz, one of the newly elected Republican justices, asked if the U.S. Supreme Court’s ongoing proceedings block the state court from overruling Harper I.
“This court certainly has the authority to overrule Harper I notwithstanding Moore v. Harper,” Scratch responded.
Meanwhile, Democratic justices who previously ruled against the GOP lawmakers appeared skeptical of changing their stance on Tuesday.
“What has happened over the course of the past 88 days since we issued our opinion in this case, that would mandate and compel a different result?” asked Justice Michael Morgan (D).
Justice Anita Earls (D), who also previously ruled against the Republican lawmakers, noted, “You’re saying that we should overrule Harper I and advocate that the legislature has free rein to enact legislative districts that give extreme partisan advantage to one political party, rather than to, as Harper I stipulated, there should be adherence to some measures of fairness.”