The North Carolina Supreme Court's new five-member Republican majority gave GOP lawmakers the green light to pass a new round of extreme gerrymanders on Friday when it overturned its own December ruling that had established that partisan gerrymandering violated the state constitution. The court's prior Democratic majority had issued that decision, but Republican justices took the unprecedented step of rehearing the case even though the only fact that had changed was that Republicans flipped the court last fall.
In two further decisions handed down Friday, the GOP majority also sided with Republican lawmakers in a pair of voting rights cases that had centered on discrimination against Black voters. In one, the court rescinded another recent state Supreme Court ruling that had invalidated a Republican-backed voter ID law. In the other, it overturned a lower court that had struck down the state's ban on those with felony convictions voting while on parole or probation; in so doing, it also revived a requirement that all fines and fees be repaid before the restoration of voting rights for affected individuals.
In the redistricting case, North Carolina's highest court took its cue from an infamous 2019 U.S. Supreme Court decision and ruled that judges are not permitted to adjudicate claims of partisan gerrymandering, calling them "political questions" unsuited for the legal system to address because they allegedly lack a "manageable standard" to evaluate them.
The ruling had been expected for weeks, but its consequences will be profound and have national implications. The decision expressly allows Republican lawmakers to redraw maps for both Congress and the state legislature, which means that gerrymandering may once again cost Democrats control of the U.S. House next year. Meanwhile, Republicans will be able to cement their veto-proof legislative majorities that they recently gained thanks to a turncoat Democrat who switched parties earlier this month.
The ruling represents a far-reaching partisan power grab that Democratic Justice Anita Earls called out in a scathing dissent joined by fellow Democrat Mike Morgan. Earls pointed out that the majority's decision overturns a fundamental protection found in the state constitution that guarantees the right to vote in fair elections. She blasted the majority's claims that judges are incapable of determining when gerrymandering crosses the line, noting that "courts both in North Carolina and around the country … have successfully confronted this question." (Just a week ago, the Alaska Supreme Court issued a unanimous opinion holding that partisan gerrymandering violates its state constitution.)
Last year, Republicans had twice attempted to pass congressional gerrymanders engineering a 10-4 or even 11-3 Republican majority, which the courts blocked on a preliminary basis. Given the GOP's repeated failures to craft a legal map, the courts drew their own congressional map to be used temporarily for 2022 while the case proceeded.
That map was the first fair one North Carolina had seen in many years and resulted in a 7-7 split between the parties, befitting its status as a swing state. Now, Republicans will almost certainly create a map that targets four Democratic representatives, Jeff Jackson, Wiley Nickel, Don Davis, and Kathy Manning, all of whom (except for Manning) were elected for the first time last year.
The courts also blocked the GOP's initial legislative gerrymanders last year, but Republicans passed a second set of maps that were somewhat tamer than the first, which the courts let temporarily remain in place for last year's elections while the case challenging them proceeded. While the Democratic justices subsequently struck down the Senate map in December, they upheld the House map and declared it was legally "established" and therefore valid for the rest of the decade.
To allow Republicans to redraw the state House map in addition to the other maps, the GOP justices engaged in pretzel logic to get around the state constitution's ban on mid-decade redistricting, which only a court order can override. GOP lawmakers had claimed judicial intervention to temporarily bar the first House map meant that the second map was not legally "established" because legislators only drew that second map after being compelled to act by the courts.
However, Republicans voluntarily chose to pass that revised House map. They could instead have continued fighting to preserve their initial map and let the courts temporarily implement one for just the 2022 elections while the case remained pending. (Under state law, a court-imposed remedial map may be used "in the next general election only.")
With new legislative gerrymanders, Republicans will almost certainly be able to maintain the three-fifth supermajorities needed to put constitutional amendments on the ballot and override vetoes even if Democrats hold the governor's office in next year's elections. Their new maps will also continue to discriminate against Black voters: The GOP's 2022 maps dismantled districts protected by the Voting Rights Act on the basis that North Carolina's voting patterns are not racially polarized despite ample evidence to the contrary, a move enabled by the U.S. Supreme Court's repeated rulings undermining the VRA.
Friday's ruling could also have other far-reaching implications nationally, since it could end up mooting a pending U.S. Supreme Court case in which North Carolina Republicans have asked the federal high court to issue a radical ruling of its own.
In that case, Republicans want the court to overturn two centuries of constitutional law by dismantling the power of state judges to enforce state constitutions when adjudicating laws passed by state legislatures that govern federal elections. If it rules in favor of this argument, known as the "independent state legislature" theory, the Supreme Court would hand gerrymandered legislatures across the country nearly unchecked power to gerrymander and restrict voting access in federal races.
That case, called Moore v. Harper, was argued Dec. 7; while a ruling could come at any time, the federal court often waits until the end of its term in late June before issuing decisions in its most contentious cases. However, GOP state legislators have said they don't expect to begin redistricting until summer, which would likely mean they’ll only start after the court's term ends.
For Democrats and redistricting reformers, the only path forward in North Carolina is at the ballot box, and it’s a long and difficult road. To retake a majority on the state Supreme Court, Democrats will first have to defend Morgan’s seat next year and Earls’ seat when it’s up in 2026. Then, in 2028, they’ll need to win three of the four races likely to appear on the ballot that year.
It’s also critical that they hold the governorship in 2024, as both Morgan and Republican Chief Justice Paul Newby (who wrote the redistricting opinion) will hit the mandatory retirement age of 72 in 2027. The governor would then have the power to appoint temporary replacements, who’d both be able to run for full eight-year terms the following year. Two other Republican justices, Phil Berger Jr. and Tamara Barringer, will also go before voters in 2028.
Editor’s note: This post has been updated to include information on the voter ID and felony disenfranchisement cases and on Democrats’ path for retaking a majority on the North Carolina Supreme Court.
Can we have fairer, more representative elections in the U.S.? Absolutely, says Deb Otis on this week's episode of "The Downballot." Otis, the director of research at FairVote, tells us about her organization's efforts to advocate for two major reforms—ranked-choice voting and proportional representation—and the prospects for both. RCV, which is growing in popularity, not only helps ensure candidates win with majorities but can lower the temperature by encouraging cross-endorsements. PR, meanwhile, would give voters a stronger voice, especially when they're a minority in a dark red or dark blue area.