Robed reversal
North Carolina elects its state Supreme Court judges. And in the 2022 midterms, Republicans took over the court. That was tantalizing to the GOP, which keeps passing measures to help it reliably win elections even in a narrowly-divided state. But this week, the new GOP-dominated court issued a shocker: It agreed to rehear recently-decided cases on controversial voter ID and gerrymandering laws.
That seeming power grab could have a direct impact not only on voting rights in North Carolina, but also on the Moore v Harper case in the US Supreme Court. I wrote about Moore in December, and the nakedly political genesis of its "independent state legislatures" theory that could do more damage to democracy than anything since Donald Trump's attempted coup. (It's the one right-wing legal scholars cooked up to say that only state legislatures—not governors, or even courts—have a role in determining how states run federal elections. If the Court goes with that doctrine, the implications for election mayhem are potentially terrifying.)
I called up UCLA law professor and election expert Rick Hasen, who's been writing about North Carolina's new GOP court and Moore v Harper. Our chat has been edited for length.
So, Rick. The North Carolina Supreme Court strikes down GOP-backed moves on voter ID and gerrymandering. Republicans take over the court, and all of a sudden it's time to rehear those cases. Is that as nefarious as it sounds?
It's not surprising that the Republican Supreme Court majority disagrees with the former Democratic majority. Unfortunately, in these voting cases, the judges often break down on party lines. So the fact that they have a different view is not nefarious at all.
That said, rehearing in the case so soon after the ruling… that looks quite political. Then again, the Democrats rushed out their orders before the end of their terms so that they could decide them before they were done. And it does create a much more partisan appearance than, say, if the court had waited a couple of years for new voter ID or gerrymandering cases and then overruled the old ones. So it's kind of a political process, which unfortunately, is not how we like to think about the judiciary.
The dissent pointed out that since 1993, the court has granted precisely two rehearings out of 214 petitions. So this seems like an outlier.
Rehearing is definitely rare. They have to understand that in election cases, you don't want to change the rules right before the election. So for example, the Republican majority on the court may now say that partisan gerrymandering is just fine. You want them to say it sooner so that they can redraw the lines in time for people to run for election. So I can understand the desire to do the districting and the voter ID stuff well before the election. But again, it creates an appearance that politics is playing a big, big role in these decisions.
You raise the specter that this case could moot Moore v Harper in the Supreme Court. And, you said, be careful what you wish for.
Ordinarily, my view is that voting rights lawyers want to stay out of the Supreme Court whenever possible, because they're generally hostile to expansive readings of voting rights. They're hostile to protecting voters under the Voting Rights Act, they're very protective of states and their ability to discriminate. But this case is a little different. I'm not thrilled with the Supreme Court deciding this independent state legislature theory. I'm scared about what they might do. But if they're going to decide it, better for them to do it when it's not in the context of a presidential election when the stakes are incredibly high and the legitimacy of the court and an election could be at stake. That could be a crisis.
The skeptical political take on this whole situation is that Republicans in North Carolina are sick of competing in elections, and now that the GOP controls the court, they're revisiting this case.
What I would say is that to many on the left, this looks like a Republican power grab. But to many on the right, what the state Supreme Court did when Democrats controlled it looked like a power grab. And if we're gonna have elected judges deciding cases, these kinds of clashes are inevitable. This one just looks a little more unseemly because of the timing issue, and kind of the quick flip of the court.
So what's the best outcome here, in your view, for democracy?
What I'd like to see is congressional legislation that polices gerrymandering and state legislation too. It doesn't include North Carolina, but you have redistricting commissions in California, Arizona and Michigan, and a fair districting amendment that's supposed to limit redistricting shenanigans in Florida. So there are lots of ways to police this stuff. As for what it will mean for the US Supreme Court's case, I don't think we know yet.
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