Litigation in North Carolina is perhaps most notable for being the current source of efforts to get the U.S. Supreme Court to endorse the fringe independent state legislature (ISL) theory, which could grant state legislatures unfettered control over federal election rules. A major case is before the Court right now about this theory, but it’s not the only case out of the Tar Heel State to raise the ISL theory. Other pending litigation touches on photo ID laws, felony disenfranchisement and even whether racially gerrymandered legislatures can amend the state constitution.
North Carolina is home to some of the most complicated and contentious redistricting litigation of the 2020 redistricting cycle — fitting for one of the nation’s most gerrymandered states and the source of landmark redistricting court cases like Shaw v. Reno and Thornburg v. Gingles.
In November 2021, after the state’s Republican legislative majorities passed new legislative and congressional maps following the 2020 decennial census, multiple groups challenged these maps in state court for being partisan gerrymanders that violate the state constitution. In February 2022, the North Carolina Supreme Court struck down the state House, state Senate and congressional maps and ordered the Legislature to draw new maps. Soon after, the trial court approved new state House and Senate maps passed by the state Legislature and implemented an interim court-drawn map for the 2022 congressional election. State Republicans appealed the decision to overturn the congressional map to the U.S. Supreme Court while litigation over all three maps continued in the North Carolina state courts. We discuss both the U.S. Supreme Court appeal and the ongoing state court litigation separately, although they technically are all part of the same state-level lawsuit.
Date filed: March 17, 2022
Plaintiffs: North Carolina Republican legislators
Argument: The North Carolina GOP legislators invoke the ISL theory to argue that the North Carolina Supreme Court’s decision overturning the original congressional map violates the Elections Clause of the U.S. Constitution. According to them, the North Carolina court usurped map-drawing power that is properly left in the exclusive hands of the state Legislature.
Status: The U.S. Supreme Court held oral argument in December 2022. Normally, all that would be left is for the Court to release its decision. But subsequent developments in the North Carolina state courts have raised the possibility that the Court will choose to dismiss the case instead. In March, the Court asked for additional briefing on whether it even has jurisdiction to hear the case. With that briefing complete, we now are waiting to see what the Court decides to do.
The constitutional text and history, as well as overwhelming precedent from this Court, refute the notion that the Elections Clause gives state legislatures free rein to regulate federal elections without regard to state constitutions, as construed by state courts.BRIEF FOR HARPER RESPONDENTS
Date filed: Nov. 18, 2021
Plaintiffs: Individual voters, North Carolina League of Conservation Voters, Common Cause
Argument: The plaintiffs argued that the congressional and legislative maps passed by the North Carolina Legislature represent extreme partisan gerrymanders that violate the North Carolina Constitution.
Status: After striking down the original maps, in December 2022 the North Carolina Supreme Court upheld the new state House map while striking down the Senate map for again being a partisan gerrymander. However, in 2023 the court’s new Republican majority agreed to rehear the case, a development that could allow the court to overturn its previous decisions striking down Republican gerrymanders. Oral argument was held on March 14.
Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter.OPINION
Voting rights litigation
Election observers and absentee ballot return deadline challenge
For the 2022 elections, the North Carolina State Board of Elections (NCSBE) extended the absentee ballot return deadline from Nov. 11 to Nov. 14 due to Veterans Day. The NCSBE also issued guidance directing election workers to enforce restrictions on partisan election observers. The Republican Party challenged both of these actions in state court.
Date filed: Sept. 9, 2022
Plaintiffs: Republican National Committee, the North Carolina Republican Party and the chairwoman of the Clay County Republican Party
Argument: The Republicans argue that the NCSBE’s actions violate the letter of state law and the North Carolina Constitution. They additionally invoke the ISL theory to argue that the Board usurped the state Legislature’s power in violation of the U.S. Constitution’s Election Clause.
Status: On Oct. 13, a judge ruled from the bench and denied the Republicans’ request to shorten the absentee ballot deadline and allow more than one “at-large” observer at each polling location. The judge did grant their request to remove a four-hour time requirement on certain poll observers. Litigation in the state court is ongoing.
No other mechanism in Chapter 163 gives the NCSBE, or its Executive Director, authority to unilaterally change the deadline by which civilian absentee-by-mail ballots must be received by county boards of election in order to be accepted…This unilateral action directly usurps the General Assembly’s authority as granted in Article I, Section 4 of the United States Constitution, which vests authority to set the “Time, Places, and Manner of holding Elections for Senators and Representatives” exclusively in the state legislature.COMPLAINT
Signature matching guidance challenge
On July 14, 2022, the NCSBE denied a Republican request to allow county boards of election to reject mail-in ballots because of signature matching issues. The board found that signature matching is not allowed by state law. The North Carolina Republican Party appealed this ruling to the state court system.
Date filed: Aug. 22, 2022
Plaintiffs: North Carolina Republican Party and two Republican individuals
Argument: The plaintiffs allege that the NCSBE’s decision violates the state constitution as well as the U.S. Constitution’s Elections Clause since it fails to comply with statutes enacted by the state Legislature, which mandate that absentee envelopes be “signed personally by the voter,” and instead favors its own guidance on the matter. Once again, the Republicans invoke the ISL theory to bolster their claims.
Status: On Oct. 7, a judge issued an order denying the Republicans’ request to block the board’s guidance that signature matching isn’t permitted in North Carolina. As a result, no counties conducted signature matching during the November 2022 elections. Litigation is ongoing.
Petitioners failed to demonstrate a likelihood of success on the merits because the statutory mechanisms enacted in North Carolina demonstrate clear legislative intent to expressly set forth the information required on absentee container return envelopes and processes to be carried out by county boards of elections to verify the identity of the voter…The comparison of signatures is not among these requirements.ORDER
Felony disenfranchisement challenge
North Carolina law denies the right to vote for individuals with felony convictions who remain on probation, parole or a suspended sentence. Additionally, since release from probation requires payment of various fees, regaining full voting rights is often dependent on an individual’s ability to pay those costs. Various voting and civil rights groups filed a lawsuit against the law.
Date filed: Nov. 20, 2019
Plaintiffs: Community Success Initiative, Justice Served N.C., North Carolina State Conference of the NAACP, Wash Away Unemployment and individuals convicted of felonies
Argument: The plaintiffs allege that North Carolina’s felony disenfranchisement law burdens the right to vote and violates multiple provisions of the state constitution, including the Free Elections Clause and Equal Protection Clause.
Status: The trial court held that the law violates the North Carolina Constitution by discriminating against Black residents and denying people the right to vote. The defendants appealed the decision, but before the appellate court could rule, the North Carolina Supreme Court took over the case. The court held oral argument on Feb. 2 and a decision is pending.
The Free Elections Clause of the North Carolina Constitution declares that “[a]ll elections shall be free.” N.C. Const., art. I, § 10. It mandates that elections in North Carolina faithfully ascertain the will of the people. This clause has no federal counterpart…[the] denial of the franchise to people on community supervision violates the Free Elections Clause by preventing elections that ascertain the will of the people…North Carolina’s elections do not faithfully ascertain the will of the people when such an enormous number of people living in communities across the State—over 56,000 individuals—are prohibited from voting.FINAL JUDGMENT AND ORDER
Photo ID challenge
North Carolina Republicans tried for years to add a photo ID requirement to vote in the state. After amending the state constitution to require an ID to vote, Republicans enacted Senate Bill 824 over Gov. Roy Cooper’s (D) veto to require voters to show on one of 10 authorized photo IDs. Multiple lawsuits in different courts were filed against the law.
Date filed: Dec. 20, 2018
Plaintiffs: North Carolina State Conference of the NAACP and other local chapters of the NAACP
Argument: The plaintiffs argue that the voter ID law disproportionately burdens the right to vote of Black and Latino residents in violation of the Voting Rights Act and the 14th and 15th Amendments of the U.S. Constitution.
Status: Litigation in the district court was temporarily paused as North Carolina legislators went all the way to the U.S. Supreme Court asking to be allowed to intervene in the proceedings. In June 2022, the Court agreed, ruling 8-1 that the legislators are entitled to intervene. Litigation at the district court level should resume shortly.
There is not now, and never has been, any demonstrated need for voter photo identification in North Carolina. After the 2016 election, the North Carolina State Board of Elections (“SBOE”) conducted an extensive study and found that only one fraudulent vote might have been prevented by a requirement to present photo identification before in-person voting.COMPLAINT
Date filed: Dec. 19, 2018
Plaintiffs: Individual voters
Argument: The plaintiffs allege that the voter ID law violates the Equal Protection Clause of the North Carolina Constitution because it was passed with the intent to discriminate against Black voters.
Status: In September 2020, a trial court issued a decision permanently blocking the law, ruling that it was passed with the intent, at least in part, to discriminate against African American voters in violation of the state constitution. The defendants appealed this decision to the North Carolina Supreme Court, which heard oral argument in the case on Oct. 3, 2022 and ruled on Dec. 16 that the law violates the state constitution because it was enacted with “impermissible” racially discriminatory intent. On Feb. 3, however, the court’s new Republican majority agreed to rehear the case. Oral argument was held on March 15, 2023.
The question before this Court is whether the three-judge panel’s finding that S.B. 824 was motivated by racial discrimination is supported by competent evidence in the record and whether the trial court correctly applied the Arlington Heights factors when it found S.B. 824 was enacted at least in part with racially discriminatory intent…We hold that the three-judge panel’s findings of fact are supported by competent evidence showing that the statute was motivated by a racially discriminatory purpose.OPINION
Date filed: Aug. 6, 2018
Plaintiffs: North Carolina State Conference of the NAACP
Argument: The plaintiffs challenged the amendment to the North Carolina Constitution that requires a photo ID to vote. They argue that the amendment was placed on the ballot for approval by the voters by an unconstitutionally gerrymandered Legislature. As a result, the Legislature had no authority to propose amendments, they allege.
Status: On Aug. 19, 2022, the North Carolina Supreme Court ruled in a 4-3 decision that North Carolina state legislators who were elected under racially gerrymandered districts do not possess unlimited authority to amend the North Carolina Constitution. However, this decision did not overturn the challenged photo ID amendment at issue in the lawsuit. Rather, the North Carolina Supreme Court remanded the case back down to the trial court with specific instructions for deciding whether the challenged amendments should be “retroactively invalidated.” Litigation is ongoing in the trial court.
The precise legal question before us is whether a General Assembly composed of a substantial number of legislators elected due to unconstitutional gerrymandering may exercise the sovereign power delegated by the people of North Carolina to the legislature under article XIII, section 4 of the North Carolina Constitution, which authorizes the General Assembly to propose constitutional amendments “if three-fifths of all the members of each house shall adopt an act submitting the proposal to the qualified voters of the State for their ratification or rejection”…We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators’ authority to initiate the process of amending the constitution under these circumstances.OPINION