Perhaps a change of scenery will help.
The N.C. Supreme Court relocated its operations about two hours east this week. The court was scheduled to hear arguments in five cases over two days in the Historic 1767 Chowan County Courthouse in Edenton.
Among those cases are two that already have produced 4-3 party-line splits among the court’s justices. Partisan disagreement didn’t focus on the cases’ substance. Justices instead parted ways about whether they should hear the cases at all at this time.
In what had previously been a rarity in state Supreme Court practice, Republican justices made public their dissents from court orders scheduling both cases. They accused their Democratic colleagues of injecting factors other than legal and constitutional concepts into the decision-making process. The pointed commentary could not have contributed much to the court’s collegiality.
The first case, Holmes v. Moore, involves a challenge to North Carolina’s 2018 law requiring photo identification for voters across the state. Plaintiffs are working with the left-of-center Southern Coalition for Social Justice. They claim the law discriminates against minority voters.
A split 2-1 decision from a trial court panel in September 2021 blocked North Carolina from implementing voter ID. It’s not in place for this fall’s election. Nothing about this week’s hearing will change the status quo.
Yet Supreme Court Democrats agreed with the ID critics’ request to speed up the legal process. Back in March, the high court agreed to bypass the N.C. Court of Appeals, which normally would have heard any appeal of the split trial-court ruling.
Then a split Supreme Court voted last month to schedule oral arguments in the case 17 days before the start of early voting in the general election.
“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, … [t]his case shall be scheduled for oral argument as soon as practicable,” explained Justice Robin Hudson, the court’s senior Democrat.
Chief Justice Paul Newby, a Republican, openly questioned his Democratic colleagues’ reasoning. “[T]he trial court’s permanent injunction in favor of plaintiffs remains intact,” Newby wrote in dissent. “Expedited consideration, therefore, will not provide plaintiffs any new relief that they do not already enjoy. Accordingly, nothing suggests that expedited hearing is necessary ‘[t]o prevent manifest injustice’ or to protect ‘the public interest.’”
“Given the impending November elections, expedited hearing in October on this voter ID matter will likely cause voter confusion,” Newby added.
Before agreeing to schedule the voter ID case, Supreme Court Democrats already had agreed to hold an expedited October hearing for Harper v. Hall. That case deals with disputed state election maps.
As with the voter ID controversy, nothing about this week’s redistricting case will have any practical impact on this fall’s election. District lines for congressional and legislative elections are set.
Yet Hudson offered a similar justification — “great public interest,” “importance of the issues,” the need for a “final resolution” — when announcing Democratic justices’ decision to delve into another election-related case in the middle of campaign season. The court sided with plaintiffs from left-of-center activist group Common Cause. That group challenges Republican-drawn election maps.
In this case, Justice Tamara Barringer wrote for dissenting Republicans. ”Common Cause fails to identify a single real-world, negative consequence that will occur if this case proceeds in customary fashion,” she wrote.
“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,” Barringer added. “Nonetheless, for no discernible jurisprudential reason, four Justices on this Court have chosen, without explanation, to allow Common Cause’s motion.”
Barringer aimed her criticism squarely at the court’s Democratic majority.
“What is happening in this case cannot go unnoticed,” she wrote. “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.”
Left unmentioned is another set of important facts.
Two state Supreme Court seats are up for election this year. Democrats hold both. A Republican win in either contest would swing the court’s partisan balance back toward the GOP.
Common Cause can count. So can the Southern Coalition for Social Justice. So can other leftist groups who oppose voter ID and GOP-drawn election maps. It’s a common refrain among political observers that these groups are rushing to win favorable state Supreme Court rulings before voters can shift the court’s composition.
If the current court “reeks of judicial activism,” in Republican justices’ view, it’s because their Democratic colleagues appear to endorse left-leaning activists’ scheme.
But the aroma of recent decisions doesn’t necessarily travel down U.S. 64 and U.S. 17 and across the Chowan River to Edenton. Holding court in a building that predates the United States of America might offer a new perspective to short-term, current-day squabbles.
One can hope the two-day road trip leads to a Supreme Court reset.
Mitch Kokai is senior political analyst for the John Locke Foundation.