N.C. Supreme Court Associate Justice Anita Earls speaks during a press conference, June 9, 2020, in Raleigh, N.C. In massive victories for Republicans, the North Carolina Supreme Court on Friday, April 28, 2023, threw out a previous ruling against gerrymandered voting maps and upheld a photo voter identification law that colleagues had struck down as racially biased. (Julia Wall/The News & Observer via AP, File)

The North Carolina Supreme Court issued another strike against democracy last month, overturning two gerrymandering decisions from last year and letting state legislators draw unfair maps to keep themselves in power. “Throw the bums out” doesn’t work when the bums rig the game.  

Coupled with the U.S. Supreme Court’s decision in Rucho v. Common Cause in 2019—which took federal courts out of the partisan gerrymandering business—voters in the Tar Heel State now have nowhere to turn to prevent anti-democracy abuses of the voting process. 

Let’s review how the courts failed to protect democracy in North Carolina. 

In recent decades, redistricting disputes have been a hallmark of the state’s politics. During the past decennial redistricting cycles, the courts have struck down maps as unconstitutional because they harmed minority voters.  

The North Carolina legislature became more deft, enacting maps that would comply with the Supreme Court’s rulings on racial gerrymandering but were still extreme partisan gerrymanders. Representative David Lewis, one of the primary sponsors of the redrawn map in 2016, said the quiet part out loud: “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” He noted that he drew a map that would elect 10 Republicans and 3 Democrats to Congress “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” 

Plaintiffs challenged the congressional map (in addition to the state legislative maps) as an unconstitutional partisan gerrymander, using various metrics and tests to show how the legislature had adopted a map for nakedly partisan purposes instead of to ensure fair representation. Although the plaintiffs won in the lower courts, the U.S. Supreme Court abruptly ended federal judicial involvement in partisan gerrymandering disputes. In Rucho v. Common Cause, the Court ruled that claims of partisan gerrymandering are “nonjusticiable” because there are no judicially manageable standards to determine when partisanship has gone too far—despite several federal judges previously invoking tests to root out the worst abuses. 

Chief Justice John Roberts’s majority opinion in Rucho, however, included an important caveat: “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.” The Court then pointed to state constitutions and state laws that might limit the practice. 

Following the Court’s advice, plaintiffs in North Carolina filed suit in state court against the 2016 congressional map (which the U.S. Supreme Court had refused to invalidate), and in 2019 a North Carolina court struck down the map under the state constitution. The legislature eventually adopted a fairer map for the 2020 election.  

After the 2020 Census, with new maps needed, the North Carolina legislative majority again adopted a brazen partisan gerrymander to guarantee Republican electoral domination. The state had gained a congressional seat in the 2020 Census. The new GOP-drawn maps ensured that Republicans would win 10 seats to the Democrats’ four, even if the statewide vote totals were close.  

Voting rights plaintiffs went to court again. In February 2022, the North Carolina Supreme Court, on a 4-3 vote, struck down the map as violating the state constitution and required a fairer map for the 2022 election. The state chooses its supreme court members in partisan elections, and the decision fell along partisan lines, with four Democrats in the majority and three Republicans in dissent. The majority opened its decision with a powerful statement:  

“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? 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.”

That February 2022 decision is the subject of the Moore v. Harper case at the U.S. Supreme Court, which invokes the so-called independent state legislature theory. That theory posits that state courts cannot use their state constitutions to limit state legislatures when it comes to the rules for federal elections. In December 2022, the North Carolina Supreme Court reiterated that the state constitution, which has more robust protection for voters than the U.S. Constitution, prohibits extreme partisan gerrymandering.  

But in January 2023, two new justices joined the North Carolina Supreme Court, having won election two months earlier. Their wins changed the court’s composition from 4-3 in favor of Democrats to 5-2 in favor of Republicans. Almost immediately, the new Republican majority ordered a rehearing of the prior cases, signaling that it would use its newfound power to bless the legislature’s extreme gerrymanders.  

Last Friday, the court reversed its prior stance and severely limited the state constitution’s protection of voters.  

In its opening pages, the new Republican majority acknowledged that “the state constitution declares that all political power resides in the people,” but then it placed power in the hands of the politicians, not the voters. It said, “[a]t its heart, this case is about recognizing the proper limits of judicial power.” But judicial power requires effectuating the protections of the state constitution—which the majority failed to do. 

The state constitution textually and explicitly offers greater protection to voters than the U.S. Constitution. For example, the state constitution includes the Free Elections Clause: “All elections shall be free.” The Pennsylvania Supreme Court had construed a similar clause in its state constitution to prohibit extreme partisan gerrymandering. 

But the new North Carolina Supreme Court majority essentially nullified this language. It claimed that the provision exists only to address “abuses of executive power and to protect against interference and intimidation in the voting process.” This crabbed reading gives unfettered power to the state legislature.  

The Republican majority never once grappled with the problem that extremely skewed maps make elections no longer “free” because the legislature essentially determines the outcomes ahead of time. The point should be obvious: It’s extremely difficult to vote out legislators engaging in anti-democratic behavior if they are drawing maps that make it virtually impossible to vote them out.  

It’s Rucho all over again—but this time, closing off claims under more specific state provisions that affirmatively grant constitutional protection to voters. The North Carolina court’s decision will also likely moot the Moore v. Harper case at the Supreme Court, meaning that the resolution of the dangerous independent state legislature theory could come in another case, possibly in 2024, during a disputed election when it could prove pivotal.  

If judicial decision-making is to remain legitimate, it should adhere to precedent and recognize how different legal texts can offer different protection. In the realm of voting rights, judges should elevate the primacy of voters, not politicians.  

The majority’s opinion does none of this. It overturns two decisions issued last year, even though nothing has changed except the court’s composition. It fails to recognize the stronger protection afforded to voters under the North Carolina Constitution. And it gives extreme deference to legislators, leaving voters with no recourse to prevent a skewed democracy. 

Voters can’t go to the U.S. Supreme Court to challenge an unfair map: The Court closed the door in Rucho in 2019. Now they can’t go to the North Carolina courts either.  

Justice Anita Earls ended her powerful dissent with some hope for the future:  

“I dissent from this Court’s majority opinion and its shameful manipulation of fundamental principles of our democracy and the rule of law. I look forward to the day when commitment to the constitutional principles of free elections and equal protection of the laws are upheld and the abuses committed by the majority are recognized for what they are, permanently relegating them to the annals of this Court’s darkest moments. I have no doubt that day will come.” 

In a democracy, the voters—not the politicians—should reign supreme. The court’s 2022 decision striking down the maps upheld the primacy of voters. Last week’s ruling to overturn those precedents extends the trend of courts giving undue deference to state politicians.  

The only recourse? Enough North Carolina voters should be so disgusted that they vote the bums in the legislature out—even if it will now take a supermajority thanks to the skewed, unconstitutional maps the statehouse adopted. 

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Joshua Douglas

Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law and the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.