North Carolina Republicans File Brief in Redistricting Case Being Reheard by State Supreme Court
WASHINGTON, D.C. — On Friday, Feb. 17, North Carolina Republican legislators submitted their opening brief in a previously decided redistricting case, Harper v. Hall, that the North Carolina Supreme Court’s new GOP majority agreed to rehear. The case — a precursor to the case Moore v. Harper, currently pending before the U.S. Supreme Court — tossed out North Carolina’s original congressional and legislative maps drawn with 2020 census data for being partisan gerrymanders and, following that, rejected the remedial state Senate map adopted by the Legislature.
In a highly unprecedented move back in early February, a majority of the North Carolina Supreme Court — which shifted from blue to red in the 2022 midterm elections — agreed to rehear this case, along with another case that struck down a photo ID law, following requests for rehearing from the GOP legislators who previously lost both cases. Notably, rehearing is a rare phenomenon and is typically only granted in extenuating circumstances, such as when a factual or legal matter was overlooked in a case or a change in the law occurred after the case was decided. Indeed, no changes in the facts or the law occurred between the decisions being issued in this case and the GOP legislators submitting their motion for rehearing, leading many legal experts and laypeople alike to express dismay at the North Carolina Supreme Court’s decision to rehear the case.
In their opening brief submitted today in Harper v. Hall, the North Carolina GOP lawmakers argue that the North Carolina Supreme Court erred in its December 2022 decision striking down the remedial state Senate map used in the 2022 elections for being a partisan gerrymander and upholding the court-drawn remedial congressional map used in the 2022 elections. In addition to asking the court to reverse its December 2022 decision, the GOP legislators also urge the court to overturn its February 2022 decision striking down the state’s originally enacted legislative and congressional maps for being partisan gerrymanders. In their brief, the GOP legislators contend that the North Carolina Supreme Court “should use this rehearing proceeding to return the judiciary to its proper role of interpreting and enforcing constitutional directives as written…The Constitution of North Carolina empowers the General Assembly to make political choices in redistricting, and it does not empower the State judiciary to review those choices as political choices or make the political choices in the General Assembly’s stead.” The legislators also assert that the court’s February 2022 decision “invalidating the congressional map enacted by the General Assembly…conflicts with the U.S. Constitution’s Elections Clause” and that “[p]olitical gerrymandering claims are non-justiciable.” Finally, the legislators ask the court to “permit the General Assembly to exercise its constitutional duties to draw new House, Senate, and congressional redistricting plans free from” judicial interference.
This argument largely reiterates the one that the GOP legislators made in their appeal of the state’s remedial congressional map adopted by court-appointed special masters back in July 2022, an argument that the North Carolina Supreme Court ultimately rejected when it upheld the remedial congressional map in December 2022. The first time around, the GOP legislators similarly argued that “claims for partisan gerrymandering are not justiciable under the North Carolina Constitution” and invoked the radical independent state legislature (ISL) theory to claim that the Elections Clause of the U.S. Constitution grants the “Legislature” the sole power to enact congressional maps, free from judicial review by state courts or any other entity.
Evidently, the GOP legislators’ strategy in Harper is abundantly clear: to capitalize on the North Carolina Supreme Court’s new conservative majority by making virtually the same arguments that were rejected by the court’s previously liberal majority.
Oral argument on the rehearing is set for March 14 in Harper. As of now, the possible impacts of this rehearing on the pending U.S. Supreme Court case, Moore v. Harper, remain uncertain.