The Latest Gambit From North Carolina Republicans

Blue background with red toned image of the North Carolina Legislature and black and white toned elephants sitting in front, the American flag turned upside down and the North Carolina flag facing upright.

North Carolina’s Republican-controlled Legislature has never been shy about abusing its power to undermine free and fair elections. Yet, even by historical standards, its actions in two recent cases before the state Supreme Court stand out.

Recall that this is the Legislature that — only weeks after the U.S. Supreme Court gutted a critical part of the Voting Rights Act — used its new power to enact a massive voter suppression law that the 4th U.S. Circuit Court of Appeals ultimately held targeted Black voters with “near surgical precision.” In putting that bill together, Republicans in the Legislature reviewed a variety of potential voting changes. When the bill was enacted, however, it only included the changes that would restrict those methods of voting most relied upon by Black voters. It left untouched those methods of voting most relied upon by white voters.

This is the Legislature that enacted an illegal racially gerrymandered congressional map in 2011. When that map was struck down, the Legislature enacted an explicitly partisan gerrymander that included 10 Republican and three Democratic seats. Its Republican architect explained the Legislature’s intention clearly: “I think electing Republicans is better than electing Democrats…So I drew this map to help foster what I think is better for the country.” That map was later struck down in state court for violating the state constitution.

Faced with the task of drawing new congressional boundaries in 2021, the North Carolina Republican-led Legislature again enacted a partisan gerrymandered congressional map. That map was swiftly struck down by the state Supreme Court for violating the state constitution. A court-ordered congressional map was put in place, but only for the 2022 midterm elections.

The Republican Legislature then sought U.S. Supreme Court review of the state court’s decision to strike down the gerrymandered congressional map. As basis for their argument to the nation’s highest court, the GOP state lawmakers invoked a fringe theory that the federal Constitution prohibits a state court from applying its own state constitution when reviewing legislatively enacted congressional maps. That case, Moore v. Harper, was argued before the Supreme Court last fall. A decision is expected by the end of June.

In many states, that would be the end of the story — but not in North Carolina.

For years, North Carolina voters elected their state Supreme Court justices in nonpartisan elections. The result was a balanced and moderate court. In 2017, the Republican Legislature changed that system, passing a new law that requires candidates to run in partisan primary and general elections and thus forcing contenders for the state’s highest court to reveal, and run on, their political affiliations. 

The Republicans’ plan worked as they had hoped. Since that law took effect, Republican candidates have won five out of six state Supreme Court races. The most recent elections in November 2022 resulted in two Democratic incumbents being replaced with two new Republicans. The result is a new 5-2 Republican majority, a stark difference from the Democratic majority the court enjoyed for years.

On Jan. 9, 2023, the new Republican chief justice was sworn into office. Eleven days later, North Carolina Republican legislators did something unexpected: They filed a motion with the court to “rehear” and reverse its most recent decision in the partisan gerrymander case from which Moore v. Harper originated. 

Rehearing appellate decisions is exceedingly rare. To function, the judicial system requires finality — for better or worse. Judicial rules allow a party to seek rehearing only under extraordinary circumstances. The idea is to allow courts to correct themselves only when an obvious error in law or fact has been called to their attention by one of the parties in the lawsuit.  

The applicable North Carolina rule requires a party seeking a rehearing to “state with particularity the points of fact or law that, in the opinion of the petitioner, the court has overlooked or misapprehended.” In addition, the petition needs to be accompanied by sworn statements of two disinterested lawyers who agree the earlier decision was wrongly decided.

The Legislature believes that a new 5-2 Republican Supreme Court will ignore the weight of precedent and institutional concerns in favor of a purely partisan outcome.

In their petition, the Republican lawmakers cite only four instances where rehearing was granted and led to reversal. The earliest is from 1910. The most recent occurred in 1987.

In normal circumstances, this petition would be an extreme longshot. But, once again, this is North Carolina.

On the same day that the Republican lawmakers filed their petition for a rehearing in the redistricting case, they filed a separate petition for rehearing of another case that they lost last year that blocked the state’s photo ID law. Citing the same rule and the same four examples where rehearing was granted, the Republican Legislature argues that the newly constituted Republican-controlled court should rehear and reverse its prior decision.

Among those who support the lawmakers’ request are two lawyers who submitted written certifications stating their belief that the cases should be reheard and the results changed. The first certification is from a former prosecutor and member of the Federalist Society who boasts that he “has represented a President” without noting which one. It turns out that he was part of former President Donald Trump’s impeachment defense team for a period before resigning.

The second lawyer, according to his website, “has always marveled at how a skilled contractor can turn truckloads of building materials into a twenty-story office tower or the way a developer’s vision turns an empty field into a neighborhood.” His “fascination with the built environment,” he claims, “is what makes him a great construction lawyer.”

I have no doubt that the first lawyer believes Trump should not have been impeached. And, if I had a construction project in Raleigh, the second guy would be high on my list. But their nearly identical two-page form certifications leave me unconvinced that this photo ID case should be the fifth case in the last century where the state Supreme Court rehears and reverses a prior decision.

It is abundantly clear what Republicans in the North Carolina Legislature are up to. The Legislature believes that a new 5-2 Republican Supreme Court will ignore the weight of precedent and institutional concerns in favor of a purely partisan outcome.

The Republican-controlled Legislature’s brazen efforts to strong-arm the system are not intended to be subtle. To the contrary, North Carolina Republicans want to make explicitly clear that playing hardball — changing the law about state Supreme Court partisan elections in 2017, insisting on enacting voter suppression laws and rigged maps and pouring money into electing a partisan majority on the court — paid off. They want everyone to know that the GOP Legislature is in charge.

The Legislature’s gambit is clear. What the North Carolina Supreme Court will do is yet to be seen.