N.C. Supreme Court issues 4-3 party-line split on hearing redistricting arguments in October

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  • In a party-line 4-3 split, Democrats on the N.C. Supreme Court agreed to hear a redistricting dispute as early as Oct. 3.
  • Justice Tamara Barringer's dissent says the decision to speed up the case's timeline "reeks of judicial activism."

The state Supreme Court will hear oral arguments in October involving North Carolina’s disputed election maps. With a split 4-3 party-line vote, the court’s Democratic majority issued an order Thursday setting arguments as early as Oct. 3.

The order produced a rare dissent from the court’s three Republican justices.

“What is happening in this case cannot go unnoticed,” wrote Justice Tamara Barringer. “An alliance of special interest groups, unable to convince a majority of the people’s representatives to pass certain desired legislation, has now resorted to asking this Court to simply write that legislation into our State’s sacred charter — the North Carolina Constitution. It is a feckless attempt to enable a thin majority of our State’s highest court to supersede the will of the millions of citizens who participate in our political and legislative processes.”

“The majority’s decision … lacks any jurisprudential support,” Barringer added. “It reeks of judicial activism and should deeply trouble every citizen of this state.”

Arguments in the case titled Harper v. Hall will be held “on a date to be determined during arguments scheduled the week of 3 October 2022, or by special setting no later than 18 October 2022,” according to the order signed by Justice Robin Hudson.

“In light of the great public interest in the subject matter of this case, the importance of the issues to the constitutional jurisprudence of this State, and the need to reach a final resolution on the merits at the earliest possible opportunity,” Hudson and colleagues allowed a motion from Plaintiff Common Cause to speed up the case’s timeline.

Barringer wrote for the dissenting Republican justices.

“Plaintiff Common Cause first requests that this Court expedite the hearing and consideration of this matter because it involves a ‘significant public issue implicating substantial rights,.’” Barringer wrote. “However, resolution of this appeal will have no impact on the 2022 elections, and Common Cause fails to identify a single real-world, negative consequence that will occur if this case proceeds in customary fashion.”

“In fact, it is very likely that our consideration of this case in October 2022 — the expedited scenario imposed by the majority — will instead result in considerable voter confusion since early voting for the November 2022 general elections starts on 20 October 2022,” Barringer added. “Nonetheless, for no discernible jurisprudential reason, four Justices on this Court have chosen, without explanation, to allow Common Cause’s motion.”

Justices also split, 4-3, on whether to grant a request from state legislative leaders. Lawmakers want to dismiss their own appeal of a court-drawn congressional map.

The U.S. Supreme Court is scheduled to address the congressional map dispute in a separate case called Moore v. Harper. Arguments in that case have not been scheduled. They would take place after Oct. 19, when the final legal briefs are due.

“Legislative Defendants’ pursuit of their appeal will have no effect on the upcoming election but will cost significant taxpayer resources while squandering limited court resources to no purpose,” Barringer wrote. “The predecessor case to Legislative Defendants’ appeal is also currently under review by the Supreme Court of the United States. It is unprecedented for this Court to not allow a withdrawal under these circumstances.”

“Simply put, the majority’s decision to allow Common Cause’s motion to expedite while not allowing Legislative Defendants’ motion to withdraw their appeal cannot be explained by reason, practice, or precedent,” Barringer added. “Common Cause’s motion to expedite is meritless. Legislative Defendants’ request to withdraw is more than warranted. Given the absence of any identifiable jurisprudential reason, the majority’s decision today appears to reflect deeper partisan biases that have no place in a judiciary dedicated to the impartial administration of justice and the rule of law.”

Left-of-center critics of the Republican General Assembly, including Common Cause, are challenging maps drawn for state House and Senate races.

Both maps replaced earlier versions tossed out by the state Supreme Court. The high court had ruled that both original legislative maps, along with a congressional map, employed partisan gerrymandering that violated the N.C. Constitution.

A three-judge panel later accepted revised state House and Senate maps, labeled remedial plans, and the state Supreme Court refused to block those remedial maps for this year’s elections. Now the state Supreme Court will determine whether the state will continue to use the current maps after 2022.

The high court’s latest order arrives one day after legislative leaders filed a brief defending the legislature’s role in the redistricting process.

“The central question in this appeal is whether the General Assembly retains even a scintilla of discretion in redistricting or whether the judiciary has become North Carolina’s redistricting authority. To ask the question is to answer it,” wrote attorney Phillip Strach, who represents top Republican lawmakers.

“The North Carolina Constitution vests the General Assembly with redistricting authority; that body enacted new redistricting statutes … in response to this Court’s fashioning a new ‘partisan gerrymandering’ limit on its authority,” Strach wrote. “[T]he General Assembly is not alleged to have purposefully discriminated against the Democratic party in the State Remedial Plans. The State Remedial Plans satisfy the letter and spirit of this Court’s ruling, as the partisan-fairness measurements endorsed by that ruling and adopted by the General Assembly prove.”