“Model for bad democracy”: Voting rights wins may be reversed after GOP flips North Carolina court

"Just because a court changes composition, the law should not change," attorney says

By Areeba Shah

Staff Writer

Published February 25, 2023 6:00AM (EST)

A voter casts a ballot on November 8, 2022 in Winston Salem, North Carolina, United States. (Sean Rayford/Getty Images)
A voter casts a ballot on November 8, 2022 in Winston Salem, North Carolina, United States. (Sean Rayford/Getty Images)

The North Carolina Supreme Court agreed to rehear two major voting rights cases, including one that previously blocked a restrictive photo ID to vote law and another that involved the constitutionality of political maps drawn by GOP lawmakers last year.

The decisions came earlier this month after Republican lawmakers asked the high court to reconsider its previous rulings and the court's majority shifted from blue to red with Republicans flipping control of the court, having a 5-2 advantage.

Now, the court will reconsider two recent rulings that were both losses for Republicans, who enacted the ID law and drew the districts to give their candidates a significant advantage in elections. 

"Not only does today's display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights" wrote Democratic Justice Anita Earls in her dissent in the redistricting case.

The court will rehear the cases in March, but the unusual decision to do so has created significant concern for voting rights experts, who worry that moving forward, any political majority in power can change the law on a whim and not respect precedent.

"Just because a court changes composition, the law should not change," said Mitchell Brown, a senior attorney at the Southern Coalition for Social Justice. "The rule of law should stand. If the rule of law is able to flip flop back and forth, and precedent is not respected, then we as people won't know how to follow the law."

Brown is representing Common Cause in Moore v. Harper, in which the Supreme Court will decide whether the North Carolina Supreme Court has the power to strike down the legislature's gerrymandered congressional map for violating the North Carolina Constitution. 

In urging the Supreme Court to reinstate the gerrymandered congressional map, the North Carolina legislators are relying on the "independent state legislature" theory through which they want to eliminate the system of checks and balances governing federal elections and appropriate full power themselves. 

The theory asserts that under the U.S. Constitution, state legislatures have full authority to set the rules when it comes to making state laws that apply to federal elections, and that state constitutions and state courts have no power or authority over them. 

If the Supreme Court affirms the theory in deciding the Moore case, state legislatures will effectively be freed to gerrymander electoral maps and pass restrictive voting laws with little to no supervision by state courts or other entities.

Last year, the court ruled 4-3 to strike down all three sets of maps for being partisan gerrymanders that violated the state constitution. 

Voters contested the map in state court, contending that the map violated the state constitution's "free elections clause," among other provisions, according to the Brennan Center

The North Carolina Supreme Court described it as an "egregious and intentional partisan gerrymanders, designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others."

Following the order, a trial court adopted fairer remedial maps before the 2022 midterms. 

Last year, before the new justices took their seats, the court reviewed maps drawn by Republican lawmakers for use in legislative elections in 2022, and concluded that the state Senate map was unconstitutional and needed to be redrawn. The court allowed the state House map to be continued to be used, The News and Observer reported

This is the first time in 30 years that the court has decided to rehear two cases, said Bob Phillips, executive director of Common Cause North Carolina.

"I do think that North Carolina, unfortunately, is often looked upon as a model for bad democracy and can be the playbook for other states," Phillips said. "And we're almost like the laboratory for some of this, that we think is extremely harmful."

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

The court also ruled that the 2018 voter ID law passed by the Republican-controlled legislature was unconstitutional because it had deliberately been written to harm Black voters more than white voters. 

In January, Republicans in the North Carolina Legislature asked the court to rehear both cases and correct errors in the court's previous rulings.

"The positive changes in the maps that we fought for could be rolled back and the legislature could have the opportunity to redraw the state legislative and state House districts in a way that is heavily partisan gerrymandered, which by proxy will harm Black voters and then tie that with the voter ID law at the same time, it could really diminish the ability of Black voters to vote in the state of North Carolina," Brown said. 

He added that he is also concerned with the impact this could have on future redistricting cycles. Whatever party is in power will have the ability to draw maps that benefit them to the "detriment of actual voters".

Common Cause has asked the court to dismiss the request from Republicans for the case to be reheard, but the court has dismissed their filing, saying it "grossly violates appellate rules."

Now, Brown is worried that the same voter suppression and redistricting efforts taking place in North Carolina can also spread to other states. 

In Florida for example, a constitutional amendment bans partisan gerrymandering. The amendment says that districts "may not be drawn to favor or disfavor an incumbent or political party."

However, if the court agrees with the North Carolina legislature saying it is the only body that is able to make rules around federal elections and federal redistricting, that Florida amendment may be in jeopardy of being nullified, Brown pointed out. 

"What's happening in North Carolina can serve as a model for other states, but I think other states have also served as a model for North Carolina," he added.

But even deeper than that are voter suppression laws that some states have introduced, Brown pointed out.

"There are people who want to suppress the right to vote, and they are copying each other," Brown added. "And they're copying each other throughout the country and following the lead of Florida, Alabama, Mississippi and many times, North Carolina."

Partisan gerrymandering and voter ID laws have the potential to disrupt core democratic processes across the country. 

"Voter suppression and gerrymandering have been rooted in harming voters of color," Phillips said. "That's the fact in North Carolina and I would imagine everywhere else across the country. So it is very concerning when there is this case that could open the door for what is going to be a voter ID enabling legislation that will come back up."

In many state legislatures, lawmakers have introduced or enacted laws that restrict access to the vote. 

"Legislation is categorized as restrictive if it makes it harder for eligible Americans to register, stay on the rolls, and/or vote as compared to existing state law," the Brennan Center points out

"There's no continuity in the law and that's hard," Brown said. "It's hard to make sure our conduct accords with what the law is. There's a lot of conversation about partisan gerrymandering, in terms of Moore v. Harper, but there's a bigger issue about how this affects Black voters. The party is many times a proxy for the race,"

He added that legislators have said they're not discriminating against Black voters, but instead, discriminating against the Democrats. However, that in turn harms Black voters.

"We need to pay attention to that and stop partisan gerrymandering," Brown said. "We need to make sure that there is some equality and equity in the back-end process."

These efforts are also negatively impacting voter participation, especially among younger voters, Phillips said. He pointed to the drop in voter participation in the last midterm election and said it was lower than what North Carolina has seen in the four years before. 

"I do think that these high-profile 'dramas', [or] attacks on our democracy that are playing out in North Carolina is horrible for voter participation," Phillips said. "And that is ultimately undoing what we have here in terms of a healthy, robust democracy."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

MORE FROM Areeba Shah

Related Topics ------------------------------------------

Politics Reporting Voting Rights