The latest filing in a case of now-repealed Mecklenburg County judicial districts urges the state Supreme Court to focus on its recent precedent involving statewide election maps.
The reference to the Supreme Court’s Feb. 14 decision in the Harper v. Hall redistricting case appears in a document filed Wednesday. The filing responds to critics who want the Supreme Court to reject the judicial districts case.
The N.C. Court of Appeals labeled the case moot. Appellate judges said the legal controversy in Alexander v. N.C. State Board of Elections ended in 2020. That’s when the General Assembly voted to repeal the disputed judicial districts.
Foes of the now-repealed districts disagree.
“On 14 February 2022, this Court filed its opinion in Harper v. Hall. … Regretfully, when the Court of Appeals filed its opinion in this case on 1 February 2022, the panel did not have the benefit of the Harper opinion,” wrote attorney Robert Hunter, representing the plaintiffs challenging the judicial districts. Hunter is a former state Supreme Court justice.
“The Harper decision begins as follows: ‘Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote?'” Hunter wrote. “‘Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter.'”
“This Court’s precedential decision in Harper confirms the lack of merit” in the arguments against hearing the judicial districts case, Hunter wrote.
“Harper confirms the constitutional importance of voting rights in North Carolina and addresses some of the issues raised” by attorneys on the opposite side of the case. Hunter’s legal opponents are considered the “appellees” in the dispute.
“According to Appellees, there was no basis under either state or federal law for the court to rule on the voting rights principles that were not only currently at issue, albeit in the other two districts, but also for any other districts Appellees might choose to alter, temporarily or otherwise,” Hunter wrote. “Harper makes it clear: (1) gerrymandering in election districts is an issue in the ‘public interest’; (2) gerrymandering of election districts involves statewide legal principles of major significance to the jurisdiction of the State; and (3) the decision of the Court of Appeals is not consistent with this Court’s precedent.”
Hunter argued that repeal of the challenged districts thwarted the legal efforts of his clients, the appellants in the case. “Appellants were preempted by a state mootness doctrine that will allow Appellees to continue to violate both state and federal constitutional law by racial gerrymandering legislation to render moot only those provisions that are actively challenged by a plaintiff,” he wrote.
“And, incidentally, by allowing the proceedings to go forward as far as possible until the day of reckoning can be avoided by repealing whatever is necessary to avoid a decision on the merits,” Hunter added. “Without such clarification, the General Assembly will remain free to ‘blue pencil’ unconstitutional legislation to render federal constitutional questions as ‘moot’ under state law.”
The state Supreme Court agreed on Feb. 23 to block the Appeals Court’s ruling in the case. A final resolution of the dispute will have no impact on current Mecklenburg County judicial elections. But it could help determine the fate of $165,000 in lawyers’ fees.
In addition to throwing out the case, the unanimous Appeals Court ruled Feb. 1 that a three-judge Superior Court panel had made a mistake in awarding lawyers’ fees.
The case started when plaintiffs challenged a 2018 state law. It converted all of Mecklenburg’s 21 District Court judicial elections from countywide races to races falling under eight new districts. State Rep. Kelly Alexander, D-Mecklenburg, joined with two District Court judges, a former judge, and two other Mecklenburg voters to file suit against the plan.
A legal agreement in November 2019 blocked use of the districting plan for the 2020 election. Then the General Assembly repealed the law in July 2020. The repeal ended the challenged judicial districts.
Plaintiffs continued to push their case, but a trial court panel dismissed the lawsuit as moot. Two months later, the panel awarded plaintiffs $165,000 in attorneys’ fees.
Appellate judges agreed the case was moot. They rejected the argument that the lawsuit should continue because of the “public interest” in having the repealed law declared unconstitutional. Appellate judges also agreed that the Superior Court panel did not have jurisdiction to award attorneys’ fees. They wanted the case to return to a single Superior Court judge.
There’s no deadline for state Supreme Court action in this dispute.