WASHINGTON, D.C. — On Tuesday, March 14, the North Carolina Supreme Court reheard Harper v. Hall, a previously decided redistricting lawsuit challenging North Carolina’s congressional and legislative maps drawn with 2020 census data. The case — the precursor to the currently pending U.S. Supreme Court case, Moore v. Harper, that raises the radical independent state legislature (ISL) theory — struck down the state’s Legislature-drawn congressional and legislative maps for being partisan gerrymanders in February 2022 and later rejected the remedial state Senate map adopted by the Legislature in December 2022.
Last month, a majority of the North Carolina Supreme Court — which shifted from blue to red in the 2022 midterm elections — issued an unprecedented decision agreeing to rehear this case, along with another lawsuit that struck down a photo ID law, following requests for rehearing from the GOP legislators who previously lost both cases.
Who were the parties involved in today’s oral argument?
- Republican legislators: The Republican legislators requested that the North Carolina Supreme Court rehear Harper and ask the court to overturn its previous decisions in the case. Notably, these Republican legislators defended the legality of the challenged maps and asked the U.S. Supreme Court to review North Carolina state courts’ involvement in congressional redistricting by invoking the ISL theory in Moore.
- Pro-voting parties: The pro-voting parties include individual voters led by Rebecca Harper, the North Carolina League of Conservation Voters and Common Cause. They oppose the North Carolina Supreme Court’s rehearing of Harper and request that the court affirm its previous decisions in the case. The pro-voting parties filed the original lawsuits challenging the state’s legislative and congressional maps drawn with 2020 census data.
- Justices: The case was reheard by the seven justices of the North Carolina Supreme Court: Chief Justice Paul Newby (R), Justice Michael Morgan (D), Justice Anita Earls (D), Justice Phillip Berger Jr. (R), Justice Tamara Barringer (R), Justice Richard Dietz (R) and Justice Trey Allen (R).
What did the Republican legislators’ argue today?
The Republican legislators who asked the North Carolina Supreme Court to rehear Harper argued that the court should “withdraw” its December 2022 decision (which they refer to as Harper II). This decision struck down the state’s remedial Senate map for being a partisan gerrymander and affirmed the trial court’s rejection of the Legislature’s remedial congressional map, which was ultimately replaced by a court-drawn interim map that was only in place for the 2022 elections. Additionally, the Republican legislators asked the court to “overrule” its February 2022 decision (which they refer to as Harper I) striking down the state’s original legislative and congressional maps enacted by the Legislature for being partisan gerrymanders. Finally, the Republican legislators asked the court to rule that partisan gerrymandering claims are nonjusticiable (meaning they are not suitable for courts to rule on) and to allow the Legislature to redraw all three sets of maps for the next election cycle free from judicial interference.
At the onset of today’s argument, Justice Morgan asked the Republican legislators: “What has happened over the course of the past 88 days since we issued our opinion that would mandate and compel a different result?” To this question, the Republican legislators responded that “Harper II demonstrates that Harper I was a failed experiment…It created a partisan gerrymandering claim out of multiple vague state constitutional provisions that do not say anything about partisanship in redistricting.” Justice Earls then chimed in to this line of questioning to confirm that the Republican legislators are not disputing the facts of Harper I, which found that the challenged maps were among the “most extreme gerrymanders possible;” Earls gleaned that instead, the Republican legislators are asking the court to “say in spite of those facts, the North Carolina Constitution offers no protection to voters.” The Republican legislators responded to Earls affirmatively: “Yes, Your Honor. The North Carolina Constitution does not speak to partisanship in redistricting…There is no standard for partisanship and redistricting in the state constitution.”
The Republican legislators further elaborated on their contention about partisan gerrymandering claims being outside the purview of judicial review: “It is impossible to measure so-called partisan gerrymandering and it is therefore nonjusticiable,” they argued. After stating that the question of political fairness in redistricting should be left to “the people,” Earls pushed back: “How can it be left up to the people? Because if the maps don’t fairly reflect the voting strength of the people of the state, aren’t you essentially seeking to prevent voters from exercising control over their own government?”
In the midst of the Republican legislators’ arguments, Justice Dietz asked how the North Carolina Supreme Court’s decision to rehear Harper affects the U.S. Supreme Court’s jurisdiction to decide Moore. The Republican legislators replied that “the North Carolina Supreme Court court certainly has the authority to overrule Harper I notwithstanding Moore v. Harper.”
What did the pro-voting parties argue today?
On the other side, the pro-voting parties refuted the arguments made by the Republican legislators, asserting that the legislators failed to provide the court with a valid basis for overruling its prior decisions regarding partisan gerrymandering. Accordingly, the pro-voting parties urged the court to affirm its prior decisions. “The legislative defendants play a cynical game, hoping that this newly constituted court will reverse course and abdicate its fundamental duty of judicial review,” they argued.
In addition to underscoring that partisan gerrymandering claims are justiciable, the pro-voting parties pushed back against the Republicans’ request to redraw the state House, state Senate and congressional maps, noting that although the legislators are permitted to redraw the congressional and state Senate maps that were previously struck down, they are not permitted to redraw the state House map. In support of this argument, the pro-voting parties asserted that the North Carolina Constitution and prior precedent “prohibits mid-decade redistricting,” meaning that lawmakers cannot redraw the state House map until after the 2030 census.
Throughout the argument, the court’s Republican justices pressed the pro-voting parties on what it means for voters to have “equal voting power” as it relates to redistricting and also asked how the court can set judicial standards for partisan gerrymandering claims. To this, the pro-voting parties responded that the “standard here flows directly from the [state] Constitution” which “requires that all voters have substantially equal voting power — that means the opportunity to translate their votes into seats.” The pro-voting parties reiterated that in line with the trial court’s findings that all three challenged maps were “extreme partisan gerrymanders” favoring Republicans, the North Carolina Supreme Court was correct in its previous decision striking down the maps for violating the North Carolina Constitution.
Finally, Dietz asked the pro-voting groups for their view on whether the North Carolina Supreme Court still retains jurisdiction (meaning the legal authority to decide the case) in light of the pending U.S. Supreme Court case, Moore. The pro-voting groups responded that their views on jurisdiction will be shared next Monday, March 20, in the briefing that the Supreme Court requested over the issue of jurisdiction.
Following today’s rehearing, the North Carolina Supreme Court could issue a decision either affirming or reversing its prior decisions in Harper at any time. As of now, the possible impacts of today’s rehearing on Moore and the fate of the ISL theory remain uncertain. However, after March 20 — the U.S. Supreme Court’s deadline for the parties in Moore to submit briefing on whether Court still has jurisdiction to decide the case — we might have a better sense of how the rehearing proceedings affect whether and when the Supreme Court issues a decision in Moore.