On Dec. 7, the U.S. Supreme Court will hear oral arguments in Moore v. Harper, a case that resulted from what lower courts saw as unconstitutional partisan gerrymandering by the North Carolina General Assembly and that could impact the future of redistricting across the country.
This redistricting process, done every decade to account for the population changes found through the U.S. Census, has been ongoing for the entire year after a case in February determined the previously-drawn maps were a partisan gerrymander.
The appellants, including the Speaker of the N.C. House Rep. Tim Moore (R-Cleveland), have argued that a clause in the U.S. Constitution — Article 1, Section 4, Clause 1 — gives the N.C. General Assembly complete power over running elections in the state. Therefore, they say, state courts cannot intervene in the redistricting process.
The appeal to the U.S. Supreme Court came about a month after the February case, Harper v. Hall, was decided by the N.C. Supreme Court.
In that decision, the court forced a redrawing of the state's General Assembly and congressional districts because they constituted an illegal partisan gerrymander and infringed upon voters' rights.
The court also ruled that the state's maps violated the free speech and freedom of assembly clauses in the N.C. Constitution because they impeded protected political activity.
"(North Carolinians) are represented by legislators who are able to entrench themselves by manipulating the very democratic process from which they derive their constitutional authority," Justice Robin Hudson wrote in the opinion. "Accordingly, the only way that partisan gerrymandering can be addressed is through the courts, the branch which has been tasked with authoritatively interpreting and enforcing the North Carolina Constitution."
A brief filed by the National Republican Redistricting Trust, the organization that coordinates the GOP’s national redistricting effort, said the decisions in Harper v. Hall and NAACP v. Moore have shown a "dangerous trend" of the N.C. Supreme Court limiting the legislature's power.
The court's ruling in NAACP v. Moore limited the power of the state's legislature to amend the state constitution because the court found its legislative map was racially gerrymandered.
A brief submitted by a conference of all 50 state chief justices in September pushed back against the legislature's argument, the Independent State Legislature Theory.
"The significance of that is that the judicial branch is concerned that its normal prerogative of reviewing the state legislature for unconstitutional activities is under attack here, and that they are trying to preserve the separation of powers principles that they normally enforce," Bill Marshall, a constitutional law professor at UNC's School of Law, said.
Marshall said the case could be of special importance to Chief Justice John Roberts.
In Rucho v. Common Cause, another case partially resulting from gerrymandering by the N.C. General Assembly, Roberts wrote that rulings on partisan gerrymandering were beyond the reach of federal courts.
"If the court decides that it's now going to say that state supreme courts cannot get involved in this business, it's really going to undercut what Roberts had done and argued previously," Marshall said.
According to a 2021 poll from The Associated Press and NORC, 67 percent of Americans feel state legislatures drawing districts to intentionally favor one party is a major problem across the country.
In North Carolina, 65 percent of voters said ending gerrymandering is a top voting concern for them in a survey done by Carolina Forward. While 61 percent of North Carolina Democrats strongly agree with ending gerrymandering, just 39 percent of Republicans do.
A bill to end partisan gerrymandering by installing a non-partisan, independent redistricting commission was introduced in March 2021 by several state House Democrats including former state Rep. Verla Insko and current state Rep. Graig Meyer (D-Orange, Caswell), but it has since stalled in committee.
Meyer said he believes the Independent State Legislature Theory is the most significant threat to American democracy that the U.S. Supreme Court has taken up in his lifetime.
"The Republicans in the North Carolina state legislature want to assert that they have greater authority over elections than any other body than the federal Congress and state courts or the U.S. Supreme Court, and that they should not have any forms of checks or balances on their ability to control elections," Meyer said. "And that just doesn't really exist in our form of democratic governance."
Meyer said it is possible that Republicans could use the lack of court oversight not only to gerrymander but to reinstate poll taxes or literacy tests, which have historically been used to disenfranchise Black voters.
Rebecca Harper, who is a named party in Moore v. Harper and Harper v. Hall, is a member of Common Cause North Carolina, a nonpartisan organization that aims to uphold American democracy.
Bob Phillips, the executive director of Common Cause NC, said there is no good reason to take state courts out of the redistricting process, and that this case is a blatant power grab by Republicans in the N.C. General Assembly.
"This is just the latest sad chapter in North Carolina regarding an attack on democracy," Phillips said.
He said his organization will work to educate people across the state on gerrymandering and how the Moore v. Harper case could impact redistricting in the future.
Even though Marshall said he thinks the Supreme Court would be sensitive to a move to undercut judicial authority, he said it is difficult to predict how it will rule in this case.
"Many thought that this theory didn't really have much credence to it when it was first developed, but yet it's but yet the court decided to take the issue," Marshall said. "So they must think there's something there."
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