NC Supreme Court rejects Cooper, Stein brief in redistricting rehearing

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  • The N.C. Supreme Court has rejected a friend-of-the-court brief in the Harper v. Hall redistricting case from Gov. Roy Cooper and Attorney General Josh Stein.
  • The court, with its 5-2 Republican majority, will rehear a case decided by the outgoing court's 4-3 Democratic majority.
  • The outgoing court upheld a trial court ruling throwing out legislators' congressional election map. Democratic justices also tossed a state Senate election map used in 2022.

The N.C. Supreme Court will not accept a new friend-of-the-court brief from Gov. Roy Cooper and Attorney General Josh Stein in next week’s rehearing of a redistricting case. The court rejected Cooper and Stein’s brief without comment Thursday.

Justice Trey Allen signed the order denying Cooper and Stein’s motion. Allen also signed a second order rejecting a friend-of-the-court brief from the Brennan Center for Justice at the New York University law school.

While neither order offered an explanation, both referenced Rule 31(d) of the N.C. Rules of Appellate Procedure. That rule says “The case will be reconsidered solely upon the record on appeal, the petition to rehear, new briefs of both parties, and the oral argument if one has been ordered by the court.”

A new hearing is scheduled Tuesday in Harper v. Hall. In December the outgoing Supreme Court, with its 4-3 Democratic majority, upheld a trial court’s decision to throw out a congressional election map drawn by Republican legislators. Justices also threw out the state Senate map used in the 2022 elections.

Two weeks after that decision, two Republican justices replaced outgoing Democrats on the state’s highest court. Legislative leaders asked the new court, with its 5-2 Republican majority, to rehear the case.

With a party-line vote, the court agreed on Feb. 3. The high court also will rehear the Holmes v. Moore case dealing with North Carolina’s 2018 voter identification law. That rehearing is scheduled for Wednesday.

Cooper and Stein, both Democrats, filed their motion March 3 to submit new arguments in Harper v. Hall.

“Our state constitution is meant to establish a democracy, under which the people of our State are empowered to choose their representatives, not the other way around,” according to the motion from Cooper and Stein, signed by N.C. Solicitor General Ryan Park. “Partisan gerrymandering subverts our democracy by allowing legislators to manipulate district lines to entrench themselves in power.”

“Given the profound importance of these issues for the governance of our State, the Governor and the Attorney General previously filed amicus briefs in earlier appeals in these cases, asking this Court to hold that partisan gerrymandering violates our state constitution,” Park added. “This Court, after hearing those arguments, correctly held that ‘[p]artisan gerrymandering of legislative and congressional districts violates’ multiple provisions of our state constitution.”

“Now, Legislative Defendants ask this Court to take the extraordinary step of overruling this precedent, simply because the composition of this Court recently changed,” Park argued. “Legislative Defendants also seek this Court’s blessing to, once again, draw districts to predetermine the result of future elections to the greatest extent possible.”

The state Supreme Court will not consider Cooper and Stein’s arguments. Justices will consider fresh arguments from legislative leaders.

 “While North Carolina appellate courts have inserted themselves into the redistricting process in the past, they had always done so using objective, measurable, and plainly textually-grounded standards, such as maintaining the integrity of county lines or avoiding race discrimination,” according to legislators’ brief for the redistricting rehearing.

“However, in Harper I, a majority of the Court held for the first time that partisan redistricting ‘violate[s] every individual voter’s fundamental right to vote on equal terms,’” the brief continued. “And it did not identify judicially manageable standards for determining how much partisanship is too much in this inherently political process. Instead, it promised that ‘bright-line standards’ would follow in ‘future cases,’ and was content to identify some tests — based on what it called ‘reliable’ political-science metrics — that it deemed ‘entirely workable.’ The experiment failed.”

The high court also will consider arguments from the plaintiffs who challenged Republicans’ election maps.

“Legislative Defendants’ rehearing petition and supplemental brief seek extraordinary and unprecedented relief from this Court,” wrote attorneys challenging the legislature’s maps.
“To be clear, had Legislative Defendants simply acceded to this Court’s ruling in Harper II, the General Assembly would have had the opportunity to enact an entirely new congressional districting plan and to draw a new, modified state Senate districting plan in 2023. But, absent this rehearing, the General Assembly could not jettison the state House of Representatives districting plan that it enacted last year, because the North Carolina Constitution expressly bars the legislature from altering established House districts until after the next decennial census in 2030.”

“So Legislative Defendants ask this Court to ‘permit’ the General Assembly to redraw not only the State’s congressional and Senate districts, but also its House districts — and to do so
unconstrained by four North Carolina constitutional provisions that promote fair elections and thwart partisan gerrymandering,” plaintiffs argued.

“Legislative Defendants ask this Court not only to inflict great damage on the fundamental principle of stare decisis but also to ignore the plain language of the North Carolina Constitution’s bar against mid-decade legislative redistricting,” according to the plaintiffs’ brief. “This Court should reject Legislative Defendants’ requests for relief in their entirety.”

Once the court hears new arguments Tuesday, there is no deadline for a new ruling in Harper v. Hall.

Editor’s note: This article has been updated to include a reference to Rule 31(d) of the N.C. Rules of Appellate Procedure, which dictates briefing rules for rehearings.