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National democracy gets a reprieve from Supreme Court but North Carolina is not so lucky [1]
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Date: 2023-03-11
The massive blowback to the Supreme Court even agreeing to hear this thing from state Supreme Court justices, constitutional scholars, historians, law professors—everybody living in reality—perhaps weighed a bit on the justices. When it came time for the oral argument, at least one the four—Kavanaugh—approached it with more skepticism. Following those arguments, it seemed that the Supreme Court wasn’t willing to overthrow a couple of centuries of election law, and now they might not even have to reveal the fact that as many as three of them might be willing to do just that. Instead, they throw it back to North Carolina and don’t have to deal with it.
That leaves a big problem in North Carolina, however. The state Supreme Court that had a 4-3 Democratic majority when it struck down the Republicans’ congressional gerrymander and replaced it with a fairer map is now a 5-2 court, with Republicans in the majority. Last month, it took the extraordinary measure of granting petitions to rehear the gerrymander challenge, as well as a second case in which the previous court struck down a discriminatory voter ID law. That’s what gave the U.S. Supreme an out in deciding the case.
The new conservative majority invoked a procedural rule, rarely used previously, that allows it to rehear a case under the premise that the court has “overlooked or misapprehended” points of law or fact. The last two Democratic justices remaining on the bench rebuked the decision to rehear the cases as a “display of raw partisanship,” and by all appearances that’s exactly what the decision is. That rarely used rule, for example? It had only been invoked in two out of 214 cases in the past three decades.
As if to prove just how rawly partisan they are willing to be, the majority judges refused to allow the state’s highest elected officials, Democratic Gov. Roy Cooper and Attorney General Josh Stein, to file friend-of-the-court briefs on the gerrymandering case. The state court also rejected one from the Brennan Center for Justice at the New York University Law School. The justices will, of course, hear new arguments from the Republican legislators, as well as from the original plaintiffs who challenged the maps and the voter ID law.
“Our state constitution is meant to establish a democracy, under which the people of our State are empowered to choose their representatives, not the other way around,” the motion Cooper and Stein presented read. “Partisan gerrymandering subverts our democracy by allowing legislators to manipulate district lines to entrench themselves in power.”
“Given the profound importance of these issues for the governance of our State, the Governor and the Attorney General previously filed amicus briefs in earlier appeals in these cases, asking this Court to hold that partisan gerrymandering violates our state constitution,” it continued. “This Court, after hearing those arguments, correctly held that ‘[p]artisan gerrymandering of legislative and congressional districts violates’ multiple provisions of our state constitution.”
Clearly, the new Republican-heavy court doesn’t want to consider any of that. It’s bad news for the voters of North Carolina, even as it probably provides a reprieve for the nation.
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