In a highly unprecedented move last Friday, the North Carolina Supreme Court reversed two rulings from last year, one blocking a photo ID law and one striking down partisan gerrymandered maps. Back in February and December 2022, the court held that the state constitution bars partisan gerrymandering and struck down maps passed by the state Legislature that gave Republicans an advantage. But after the 2022 elections, when Republicans won a 5-2 majority on the court, the GOP justices agreed to rehear that decision. Exactly one week ago, the now-Republican majority on the court backtracked, ruling that partisan gerrymandering claims can’t be decided by state courts and giving the state Legislature a free hand to gerrymander the state’s congressional and legislative districts without court oversight.
Needless to say, this ruling is a blow to democracy in the Tar Heel State. The ruling will allow Republicans to cement their power in a purple state home to perennially competitive elections, predetermining election results at all levels of government. But the reversal also complicates a pending U.S. Supreme Court case, Moore v. Harper, which could have implications nationally.
The ruling will have profound consequences for North Carolina.
Many North Carolinians decried the harm that the partisan gerrymandering ruling will have on the state and its voters, beginning with the justices who dissented. Justice Anita Earls vociferously criticized the decision, lamenting it as the result of a “process driven by partisan influence and greed for power.”
In a single blow, the majority strips millions of voters of this state of their fundamental, constitutional rights and delivers on the threat that ‘our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.’Justice Anita Earls
Other legal experts echo Earls’ concerns about the message that the court’s flip flop sends. Joshua Douglas, a professor at the University of Kentucky College of Law, argues that “[c]hanging judges shouldn’t cause a sea change in the rule of law, because if that’s the case, precedent has no value any longer, and judges really are politicians.”
The state’s newly elected chair of the Democratic Party, Anderson Clayton, called the decision “a shameful and un-American power grab.” North Carolina Gov. Roy Cooper (D) stated that “Republican legislators wanted a partisan court that would issue partisan opinions and that’s exactly what this is.” Similarly, Attorney General Josh Stein (D) — and 2024 gubernatorial candidate — vowed to “not stop fighting so the voters choose their representatives, not the other way around.”
However, in the near term there’s nothing stopping the state Legislature from enacting new, highly gerrymandered election maps in the coming months that entrench Republicans in power for the next decade. The ruling is an unmitigated disaster for the Tar Heel State’s democracy, with North Carolinians no longer able to turn to state courts to protect fair maps.
The court’s reversal adds another twist to a landmark case awaiting a ruling from the U.S. Supreme Court.
Moore v. Harper, a case over North Carolina’s congressional map, wound up at the U.S. Supreme Court when Republican state legislators appealed the state Supreme Court’s February 2022 ruling striking down the congressional map and replacing it with a court-imposed map. Their appeal invoked the fringe independent state legislature (ISL) theory to argue that state legislatures have special authority to draw congressional maps, free from interference from other parts of the state government such as state courts or even state constitutions. Moore gives the Court the opportunity to review this theory — and potentially wreak havoc over federal elections.
Now that the current North Carolina Supreme Court’s new Republican majority overturned its previous February 2022 ruling, Moore may now be moot, meaning there’s no longer a controversy for the U.S. Supreme Court to decide. Despite already holding oral argument and receiving extensive briefing, the Court could merely dismiss the case without deciding the underlying ISL theory claims, a possibility many experts raised back when the North Carolina Supreme Court agreed to rehear its decision in the first place. Richard Hasen, a law professor at the University of California, Los Angeles writes that “it is hard to see how the U.S. Supreme Court continues to review” Moore.
If the Court decides to dismiss Moore, that could be something of a silver lining to last week’s North Carolina ruling. A dismissal would mean that the Court wouldn’t endorse the ISL theory in this case, leaving the current status quo in place. State courts and state constitutions would continue to constrain how legislatures run federal elections, preserving important protections for voters in states across the country.
But it likely won’t be that straightforward. As New York University School of Law professor Rick Pildes said in a statement to Democracy Docket, “this is the most procedurally strange case I can recall.” He also noted that “once the Supreme Court asserted jurisdiction” over the case, “it’s not at all clear that the North Carolina Supreme Court legally has the power to vacate it.”
Pildes agrees that if the U.S. Supreme Court wants to avoid issuing a decision, “it can invoke the NC court action as a reason to do so.” But he also argues that due to the “legal uncertainty” and importance of resolving ISL theory claims before 2024, “if the Court wants to reach the merits [of the case]…it can.”
Others argue that the North Carolina court’s new rulings didn’t moot Moore at all. J. Michael Luttig, a former federal judge and prominent legal conservative, claims that Moore remains “ripe for decision” because the court did not “disturb its holding with respect to the ‘independent state legislature’ theory.” He asserts that the court “reaffirmed that the state legislature exercises its redistricting authority ‘subject to the express limitations in [the North Carolina] constitution.’” In other words, while the original decision that was appealed to the Court in Moore no longer stands, the central premise of whether state constitutions and state courts can constrain state legislatures when they set federal election rules remains up for consideration by the U.S. Supreme Court.
University of Illinois professors Vikram David Amar and Jason Mazzone agree, noting that “Friday’s state-court ruling contains a lot of language rejecting the core of ISL.” As a result, they contend that the U.S. Supreme Court could “decide Moore on the merits notwithstanding Friday’s developments.”
Despite the various reactions and predictions, we won’t know what the Court will decide to do until it does it. On May 3, both sides in Moore offered to provide additional briefing on the impact of the new ruling, and on May 4 the Court accepted that offer. With briefs not due until May 11, the fate of this landmark case will remain up in the air for at least a week longer.