Legislative leaders ask NC Supreme Court to rehear redistricting case

A state lawmaker examines the N.C. Senate proposal of new state Senate districts as the NC General Assembly members debate the proposed redistricting maps on Tuesday November 2, 2021. Photo by Maya Reagan, Carolina Journal.

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  • N.C. legislative leaders hope the state Supreme Court will hold a new hearing in the Harper v. Hall redistricting case.
  • The court, with a new 5-2 Republican majority, could overturn a 4-3 decision last December authored by four Democratic justices.

N.C. legislative leaders want the state Supreme Court to take another look at a case involving state election maps. Lawmakers filed a petition Friday for the court to rehear the Harper v. Hall case.

The newly configured court, with a 5-2 Republican majority, could reverse a 4-3 decision handed down last month. At that time, the court’s four Democrats overruled three Republican colleagues and threw out the state Senate election map. High court Democrats also endorsed an earlier decision to strike down legislators’ map for congressional elections.

“The Constitution of North Carolina vests redistricting authority with ‘the General Assembly,’” wrote Phillip Strach, an attorney representing Republican legislative leaders. “That power is subject to textually explicit limitations, including that electoral districts be of substantially equal
population and that county lines not be crossed except where necessary to achieve that voting equality.

“But, ‘[b]ecause redistricting is quintessentially a political process[,]’ these provisions can only be read to delegate the many political choices inherent in redistricting to the General Assembly,” Strach wrote. “Accordingly, this Court in 2015 concluded that so-called ‘political’ or ‘partisan’ gerrymandering claims are ‘not based upon a justiciable standard[.]’ The U.S. Supreme Court reached the same conclusion under the federal Constitution four years later.”

“In Harper v. Hall, a majority of this Court changed course, holding that political redistricting ‘violate[s] every individual voter’s fundamental right to vote on equal terms.’ This was the least plausible case in State history to announce that rule,” according to legislators’ petition.

The brief reminds the high court that Democrats engaged in gerrymandering throughout their 140 years of control of at least one chamber of the General Assembly, from 1870 to 2010.

“By contrast, the General Assembly in 2021 adopted criteria that excluded the use of political data in line-drawing, no partisan data was loaded into the redistricting software, two members of the General Assembly testified that partisan considerations did not enter the line-drawing, and the trial record contains no contrary direct evidence of partisan intent,” Strach wrote.

When the Supreme Court’s four Democratic justices threw out state House, state Senate, and congressional maps in February 2022, a ruling called Harper I, they released an opinion “long in idealistic verbiage” but “short in concrete guidance” for lawmakers attempting to draw constitutionally acceptable maps, according to the petition.

December’s decision in the case, Harper II, led to just one of three replacement, or remedial maps, surviving the court’s scrutiny. That was a state House map that had won bipartisan support in the General Assembly. The Democrat-dominated court rejected two others, for state Senate and Congress, despite lawmakers’ attempts to apply the same court guidance to all three maps.

“That result is simply perplexing,” 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.”

Within weeks of the Harper II ruling, Democratic Justices Robin Hudson and Sam “Jimmy” Ervin IV left the state Supreme Court. Republican Justices Trey Allen and Richard Dietz replaced the two departing justices on Jan. 1.

Regardless of the Supreme Court’s response to the new petition, state lawmakers plan to redraw the congressional election map for 2024.

A rehearing could determine whether the legislature will redraw maps for its own elections.