In the culmination of yearslong fights, next year the courts will decide the future of the state’s democracy. In the process, the court itself could change.
Civil rights and good-governance groups like the North Carolina NAACP and Common Cause have brought a series of lawsuits, some also backed by the Democratic Party, addressing key structural issues underpinning the state’s democracy.
Both the groups bringing the lawsuits and the Republican majority in the state legislature, who are named as the defendants in the cases as they set many of the laws being challenged, claim democracy hangs in the balance.
Whether it’s challenging the voter ID constitutional amendment or the way lawmakers drew congressional and legislative district maps, the plaintiffs say Republicans are trying to rig the process in their favor and to the detriment, disproportionately, of Black voters.
“Republican map drawers were clearly more focused on achieving artificial majorities in both chambers of the North Carolina General Assembly than they were on producing a map that actually reflects the will of the people,” said Marina Jenkins, director of litigation and policy for the National Redistricting Foundation, which is backed by the Democratic Party.
Republicans, in turn, reply that voters put them in power and that actions by the court to overturn a constitutional amendment or interfere in the drawing of political maps is itself anti-democratic.
“As they have done for a decade now, the Democrats continue to focus on legal battles when they cannot win at the ballot box,” House Speaker Tim Moore said in a statement after a recent lawsuit was filed.
Redistricting
The most recent, and perhaps the most consequential, lawsuits question whether partisan gerrymandering is allowed under the state’s constitution.
In North Carolina League of Conservation Voters, et al. and Harper, et al. v. Hall, the league and the National Redistricting Foundation, which backs the Harper plaintiffs, argue Republican legislators illegally drew political maps in their favor.
Already in the case, which is a combined lawsuit from the two separate groups, a request to delay the 2022 primary elections went all the way to the state Supreme Court. After the lower courts flip-flopped on the decision, the N.C. Supreme Court postponed the 2022 primaries from March 8 to May 17 to give the state courts time to hear the cases.
A panel of three Superior Court judges is slated to hear the matter Jan. 3-5. Then, per the Supreme Court order, the Superior Court judges need to issue their decision by Jan. 11.
Should either side appeal the trial court’s decision, the Supreme Court set out an expedited plan to hear the case. The Supreme Court would need to make its decision around mid-March for the N.C. State Board of Elections to have enough time to prepare for the May elections, should the court order new maps to be drawn.
If the plaintiffs in this case win, it will mean that there is a limit on how politicians can draw political maps in their own favor.
Following the 2020 census, North Carolina has 14 congressional districts, and the maps legislators drew earlier this year all but guarantee Republicans will win 10 of those seats, with a possibility for 11, according to the expert analysis submitted by the plaintiffs in the case. Similarly, expert analysis shows Republicans are likely to win a majority, and even a veto-proof supermajority, of the state legislature under the current maps.
Yet the two parties are roughly equal in voting across the state, as seen in the 2020 elections, when Republican former President Donald Trump won a narrow plurality to carry the state, while Democratic Gov. Roy Cooper won a slight majority in his reelection effort.
If the Republican defendants win this case, it will mean that the state constitution allows some partisan interest in drawing political maps and that Democrats, should they ever want legislative power in the state again, will need to dramatically increase their political appeal across the more suburban and rural parts of the state.
Voter identification
The N.C. Supreme Court is also set to hear North Carolina NAACP v. Moore in early 2022, a complicated case that could strike the voter ID amendment North Carolina voters passed in 2018 from the state constitution.
A Republican supermajority in the North Carolina legislature passed several constitutional amendments, including voter ID, over Democrat Cooper’s veto, and North Carolina voters then passed the amendment in a midterm election.
After the courts ruled that the state legislature at the time was the result of a previous illegal gerrymander, Republicans lost their supermajority under the new, court-supervised maps. This case asks whether an illegally elected legislature can legitimately modify the state constitution.
If the state Supreme Court rules in favor of the plaintiffs, the state’s voter ID provision will be struck from the state’s constitution. If the decision favors the Republican defendants, the requirement for a voter ID will stay on the books, though it would not be enforced until challenges to the laws enacting it are resolved.
The N.C. NAACP and other groups are suing in state and federal courts to stop North Carolina’s current voter ID laws from going into effect. Currently, an injunction against voter photo ID in the state courts prevents that from happening. An earlier injunction in federal courts was overturned. Both cases are moving toward a full trial, and both courts are waiting to see what happens in the Moore case to decide the next steps.
A complex legal interplay exists between each of these cases, as they all focus on the power of the legislature and the authority of the courts to intervene.
Felony disenfranchisement
North Carolina may have an additional 55,000 people eligible to vote by the end of 2022. That’s about how many people there are in North Carolina who have been convicted of a felony and are not in prison but are still under some kind of state supervision.
In 2019, the N.C. NAACP and affiliated groups filed CSI v. Moore, which challenges the constitutionality of North Carolina’s law blocking this group from voting.
The lawsuit claims that once people are released from prison, their right to vote should be automatically granted again.
In August, a three-judge panel made a ruling from the bench that the current law is racially discriminatory and should be blocked with an injunction, but the judges still have not released a written ruling on the actual full decision for the case.
The Court of Appeals overturned the trial court’s preliminary injunction. The verbal ruling indicated that when the full ruling is released, it will favor the plaintiffs.
Forward Justice, the law firm representing the plaintiffs, expects the decision to be appealed to the state Supreme Court, the firm told Carolina Public Press.
If the state courts ultimately rule in favor of the plaintiffs, it will immediately grant the right to vote back to roughly 55,000 North Carolinians. Because of constant turnover in the number of people convicted of felonies and released from state supervision, a ruling in favor of plaintiffs would likely mean that over the next decades, hundreds of thousands of North Carolinians would be restored their right to vote years before the current law would allow.
Recusals at the Supreme Court
Politics do not stop at the court’s doors. Expect to see pundits and politicians attacking the courts as partisan depending on how they rule in high-profile election cases.
As it stands now, the Court of Appeals holds a 10-5 Republican-Democrat edge, while Democrats hold a 4-3 edge in the state Supreme Court. The November 2022 elections could flip that advantage in favor of Republicans.
In both the NCLCV v. Hall and NC NAACP v. Moore, the groups bringing the cases asked the Supreme Court to prevent at least one Republican justice from voting on the decision. In both cases, plaintiffs asked the court to recuse Phil Berger Jr., as his father, Phil Berger, is the Republican leader of the state Senate that passed the laws being challenged.
In Moore, the Supreme Court is scheduled to hear the arguments for recusal in late January.
Current Supreme Court rules say justices can recuse themselves if they perceive they have a conflict of interest, but there are no rules about when a justice must step back or procedures to force a justice off a case.
“A judge should not allow the judge’s family, social or other relationships to influence the judge’s judicial conduct or judgment,” according to the N.C. Code of Judicial Conduct.
If the plaintiffs are successful, they will set a precedent that will significantly limit what Berger Jr. may rule on, as some of the highest-profile cases involve laws passed by his father.
The plaintiffs in the Moore case are also asking for Tamara Barringer to be recused, as she was a Republican member of the legislature at the time it passed the constitutional amendments. If she ruled on the case, the plaintiffs argue, she would effectively be ruling on the legality of her own actions.
It is not uncommon for former legislators to be elected or appointed as judges across the different levels of the state court system. A ruling in the plaintiffs’ favor could limit the scope of actions by legislators-turned-judges.
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