The North Carolina Supreme Court just issued two shocking rulings. These election law opinions underscore how politics have infected the judiciary. The justices agreed to rehear cases that were less than two months old, throwing those recent precedents into doubt. The only difference between now and then? Republican jurists now hold a majority of seats on North Carolina’s high court thanks to this past November’s election.
The most significant among these rulings deals with the Tar Heel State’s redistricting. In 2019, the U.S. Supreme Court closed the door to federal courts entering the “political thicket” and overturning state redistricting plans on the grounds that those electoral maps are too partisan. So voting rights plaintiffs turned to state courts and invoked state constitutions, which offer greater protection to voters.
In February 2022, North Carolina’s supreme court ruled that the state’s new congressional and state legislative maps violated the state constitution, which the court interpreted to prohibit extreme partisan gerrymandering. But, due to time constraints, the court allowed the maps to be used for the 2022 midterms. Then, in December 2022—after the election but before the new Republican majority on the panel was seated—the court ruled, in a lengthy opinion, that the North Carolina Senate map was still unconstitutional and ordered the Republican-controlled legislature to redraw it. Meanwhile, that February ruling is under review at the U.S. Supreme Court in the highly anticipated Moore v. Harper case that will address the so-called “independent state legislature” theory. (More on that later.)
But instead of complying with the North Carolina Supreme Court’s order and drawing a new map or waiting for the U.S. Supreme Court to rule in Moore, the Republican-controlled legislature took a brazen step. It asked the North Carolina Supreme Court to rehear its December ruling, which also encompasses the February 2022 decision. The Republicans believed that, having won control of the state supreme court in the midterms, they could count on new, conservative justices to undo the prior cases.
Their gambit paid off. North Carolina elects its justices in partisan races, and the court last year was composed of four Democrats and three Republicans. But Republican judicial candidates won two seats in November, giving the court a 5-2 Republican tilt when the new justices took their seats this winter. The 2022 rulings were 4-3 decisions, with all Democrats in the majority and all Republicans in dissent. So, it is no surprise—now that the GOP controls the court—that the order to rehear the case was also along partisan lines, this time 5-2 in favor of Republicans. The rehearing is scheduled for next month, and while we don’t know how the court will rule, the very decision to rehear the case is deeply troubling.
In their defense, North Carolina Republicans claim that the prior rulings were partisan and that the new state supreme court majority is simply addressing that partisanship. But that’s not how the judicial process is supposed to work. Judges should be guided by precedent and legal analysis. Respect for prior rulings gives courts legitimacy and conveys to the public that judicial decisions are based on reason, logic, and the rule of law—not the party affiliation of the judges.
Democratic Justice Anita Earls, a former voting rights litigator, issued a forceful dissent to the rehearing order. She noted that there had been no change in the legal issues or evidence and that the only difference was the court’s partisan makeup. She lamented, “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.”
The North Carolina high court’s impudence has national implications. If the court reverses its previous rulings, the Moore v. Harper case, pending before the U.S. Supreme Court, could be rendered moot. That case addresses the independent state legislature theory, which suggests that a state constitution cannot limit a state legislature when it determines the rules for federal elections. The theory would give state legislatures free rein to impose restrictive voting laws even if they violate the state constitution. As election law professor Rick Hasen notes, mooting that case could have devastating consequences if the issue arises again in the context of a disputed presidential election. Whatever the Supreme Court decides—and it should reject the independent state legislature theory—it should do so now rather than during the hothouse of a disputed presidential election like the Bush v. Gore contest in 2000 or the violence of the January 6 insurrection.
If that wasn’t bad enough, the North Carolina Supreme Court created further mischief beyond the redistricting dispute through its second order, in which it decided to rehear a December ruling striking down the state’s voter ID law. Issued less than two months ago, the majority’s thorough 59-page opinion had held that the state enacted its ID requirement with a discriminatory purpose to make it harder for minority individuals to vote, violating the state constitution. Again, nothing has changed except for the court’s composition. But, less than two months after issuing the decision, the court said it would reconsider that precedent.
To put this power grab in context, in the past 30 years, the North Carolina Supreme Court had agreed to rehear only two cases out of the 214 requests it had received. Neither of those cases had obvious partisan overtones. The court has now doubled the number of rehearing grants in just one reckless day.
Justice Earls, dissenting, noted that “it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.”
Many states elect their judges, some based explicitly on partisan affiliation. But when they take the oath of office, judges should shed their political allegiances and focus on the rule of law. The new North Carolina Supreme Court majority never should have agreed to rehear these cases. But when they reconsider these disputes, the justices should affirm the court’s prior rulings to show fidelity to this core principle.
Judges should not be politicians in robes. Their only constituency should be the constitution and the rule of law.