Common Cause rejects request for new N.C. Supreme Court redistricting hearing as ‘frivolous’

Attorney Hilary Klein questions a witness during a trial addressing N.C. election maps. (Image from pool video)

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  • Activist group Common Cause labels as "frivolous" the request from N.C. legislative leaders for a state Supreme Court rehearing in a hotly contested redistricting case.
  • With a new 5-2 Republican majority, the N.C. Supreme Court has until late February to decide whether to rehear the case. A rehearing could reverse a December decision from a 4-3 Democratic court.

Left-of-center activist group Common Cause is urging the N.C. Supreme Court to reject a new hearing in the Harper v. Hall redistricting case.

In paperwork filed Monday, Common Cause labels the request from Republican state legislative leaders a “frivolous petition.”

Lawmakers are asking the state’s highest court to rehear the case decided on Dec. 16. At that time, the court’s four Democratic justices overruled three Republican colleagues. In a decision labeled Harper II, high-court Democrats struck down a state Senate election map and confirmed an earlier decision rejecting a congressional map. Lawmakers had drawn both maps to comply with a state Supreme Court order (Harper I) issued in February 2022.

The state Supreme Court issued its Harper II ruling more than one month after the November general election, and just two weeks before two new Republican justices replaced Democrats on the court. The state Supreme Court now has a 5-2 Republican majority.

“Legislative Defendants are seeking reversal of two decisions they disagree with, Harper I and Harper II, based on one factor alone: their perception that a change in composition of this Court might allow for a different result,” wrote attorney Hilary Klein of the Southern Coalition for Social Justice. Klein helps represents plaintiffs in the Harper case.

“By Legislative Defendant [Tim] Moore’s own admission, rehearing is needed because ‘[t]he people of North Carolina sent a message election day’ rejecting the decisions of the ‘outgoing majority.’ But the interpretation of our state’s constitution does not and should not oscillate with the changing composition of the Court,” Klein wrote. “The Petition is therefore motivated by improper purpose and grossly lacking in the requirements of propriety.”

“The Petition also lacks any foundation in fact or law,” Klein added. “The request to essentially rehear the February 2022 decision Harper I — couched as a request to ‘overrule’  the decision — is plainly untimely and procedurally improper. Legislative Defendants have also failed to identify any point of fact or law overlooked or misapprehended by this Court in its prior decisions.”

The Common Cause motion arrived 10 days after lawmakers requested hearings in both the Harper v. Hall case and Holmes v. Moore. In the latter case, the outgoing Supreme Court’s 4-3 Democratic majority struck down North Carolina’s 2018 voter ID law.

In seeking the Harper rehearing, legislators’ lawyers reminded the new Supreme Court that its predecessors had struck down the congressional and state Senate maps, yet upheld a state House map, despite all three maps following the same guidance from Harper I. The first Harper opinion had invented a new state constitutional prohibition on partisan gerrymandering of election districts.

“That result is simply perplexing,” attorney Phillip Strach wrote. “Only the four members of the Harper II majority can or will know a gerrymander when they see it; everyone else must await their Delphic pronouncement.”

“The Harper experiment has failed, and it is time for this Court to recognize that, correct its errors, and return to the Constitution and this State’s traditional modes of interpretation,” Strach wrote. “This rehearing Petition gives this Court a much needed opportunity to address the root of the problem: Harper I was based on profoundly flawed legal principles. This Court should withdraw its Harper II opinion, and it should overrule Harper I. This Court should also declare that the General Assembly is now able to exercise its redistricting power unencumbered by the Harper Court’s shortsighted judicial takeover.”

The state Supreme Court has until late February to make a decision about the requested rehearings.