The new 5-2 Republican majority on the N.C. Supreme Court took a rare step toward rehearing two recently decided cases on partisan gerrymandering and voting rights on Feb. 3, suggesting it is open to overturning them altogether.
The decision to rehear the cases — which found a voter ID law discriminated against voters of color and reaffirmed the court's decision to redraw election maps — comes just about a month and a half after they were handed down by an outgoing Democratic majority.
Harper v. Hall, the gerrymandering case, determined that state Republicans gerrymandered maps to produce a partisan advantage in the state's congressional delegation and in the state House.
A reheard case is unusual at the state Supreme Court level in North Carolina. A petition for rehearing has been granted by the court only twice in the past 30 years.
Bob Orr, who served as an associate justice on the N.C. Supreme Court from 1995 to 2004, said cases can be reheard on two grounds: the misapprehension of facts in the case or the misapprehension of the law. He said the latter is what these new hearings are based on.
Much of the petition for rehearing in Harper v. Hall, which was filed in January by state legislative leaders including N.C. Senate Pro Tempore Phil Berger (R-Guilford, Rockingham) and N.C. House Speaker Tim Moore (R-Cleveland, Rutherford), recounts Chief Justice Paul Newby's dissent in the December decision.
Newby argued that gerrymandering is a non-justiciable issue because it is solely the responsibility of the General Assembly to draw election maps.
Orr said the rehearing decisions are based on first impressions of law and that Harper v. Hall's rehearing is unusual since cases are normally decided on well-established statutes.
"There's no established body of law saying that decision should go one way, except for the decision by the Supreme Court," he said.
The petition for rehearing the case argued that the Democrat-majority court made serious errors on law, including its decision that the General Assembly did not have complete oversight in elections protocol, and said that legislators should be "able to exercise its redistricting power unencumbered" by courts and judicial review.
"The Harper experiment has failed, and it is time for this Court to recognize that, correct its errors, and return to the Constitution and this State’s traditional modes of interpretation," the petition read.
However, both Moore and Berger co-sponsored bills in 2009, when Republicans were in the minority in the General Assembly, that would have created an independent redistricting commission and eliminated lawmakers' role in the process in response to Democratic gerrymandering.
Neither Moore nor Berger responded to The Daily Tar Heel's request for comment, but Moore said in a statement that North Carolina voters "clearly rejected the judicial activism of the outgoing majority" and that he would protect the rule of law.
"It is the height of hypocrisy," Becky Harper, the named appellant in Harper v. Hall and an advisory board member of Common Cause NC, said.
The dissent in the rehearing order for Harper v. Hall was written by Justice Anita Earls. She wrote that the tradition for respecting previous decisions, even as the court flipped in partisan loyalty, has been broken by the new Republican majority on the court.
"The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities," Earls wrote. "I write to make clear that the emperor has no clothes. Because this Court’s decision today is an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve 'impartially,' 'without favoritism to anyone or to the State,' I dissent."
Harper said the Supreme Court taking up the cases again is "blatantly political," and it undermines the court's credibility.
"Rehearing cases because you don't like the previous outcome isn't how our judicial system is supposed to work because the meaning of the constitution doesn't change when new judges are elected," Gov. Roy Cooper said in a tweet.
Bob Phillips, the executive director of Common Cause NC, said he doesn't think any of the facts or laws in Harper v. Hall were misapprehended, and that the actions of legislative leaders and the new state Supreme Court majority are "cynical."
"It comes from a place of an excuse to justify what they do, and that is rig the maps for their own power," Phillips said.
Orr said it's likely that the N.C. Supreme Court will overturn the cases, but that it's difficult to know how far they will go in their opinion.
Both cases have been scheduled for rehearing on March 14.
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