GOP urges North Carolina Supreme Court to let lawmakers, not judges, do redistricting

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North Carolina Republicans asked that state’s supreme court on March 14 to restore GOP legislature-approved electoral maps the court previously threw out that could lead to Republican gains in the U.S. Congress and in the state legislature.

The hearing in Raleigh, North Carolina, came in a closely watched statewide redistricting case that is likely to have significant national repercussions.

The case is a test of the controversial, once-obscure independent state legislature doctrine, under which Republicans argue that the U.S. Constitution has always directly authorized state legislatures alone to make rules for the conduct of federal elections in their respective states without state courts getting involved in the process.

They point out that the Elections Clause in Article I of the Constitution states in part: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”

Republican Tim Moore, speaker of the North Carolina House of Representatives, and a driving force in the litigation, said last year, “The U.S. Constitution is crystal clear: state legislatures are responsible for drawing congressional maps, not state court judges, and certainly not with the aid of partisan political operatives.”

If Republicans prevail and the old maps are reinstated, they could gain as many as four extra seats from North Carolina in the U.S. House of Representatives, according to one analysis. Republicans now represent seven of the state’s congressional districts; Democrats represent the other seven. The extra GOP seats could help bolster the thin majority Republicans have in the U.S. House.

The outcome of the case could also affect Moore v. Harper, an appeal of the Supreme Court of North Carolina’s original ruling that is currently pending in the U.S. Supreme Court. The nation’s highest court heard oral arguments on Dec. 7, 2022, and is deliberating the case.

Previously, when Democrats comprised the majority on the state court, the court found the legislature’s maps unlawfully disfavored Democratic Party voters. But after recent elections, on Feb. 3, Republicans became the court majority and decided to rehear the underlying case, known in that court as Harper v. Hall. This is reportedly only the third time the court has ordered a rehearing in 30 years.

This prompted the U.S. Supreme Court to signal on March 2 that it is considering dropping Moore v. Harper. It directed the litigants to file supplemental briefs by March 20 addressing whether it still has jurisdiction to decide the lawsuit.

At the March 14 hearing in Harper v. Hall, members of the Supreme Court of North Carolina considered whether Republican lawmakers illegally gerrymandered the electoral maps and in the process violated the state constitution.

Although the court was scheduled to address a decision known by the nickname of “Harper II,” which pertains to maps drafted to replace invalidated maps, the GOP wants the court to also reverse an earlier decision called “Harper I” that previously struck down the maps.

Lali Madduri, an Elias Law Group attorney for a bloc of voters in the case, told the court that Republican lawmakers were playing “a cynical game, hoping that this newly constituted court will reverse course, and abdicate its fundamental duty of judicial review.”

The court previously issued “landmark decisions recognizing that the North Carolina Constitution prohibits partisan gerrymandering that systematically dilutes some North Carolinians’ votes, and requires that all voters have substantially equal voting power,” she said.

Justice Michael Morgan, a Democrat who previously ruled against the Republican lawmakers, questioned why the court should act at all.

“What has happened over the course of the past 88 days since we issued our opinion in this case that would mandate and compel a different result?” Morgan said.

Phillip Strach, attorney for the GOP lawmakers, said the court lacks the authority to rule on alleged gerrymanders and should leave redistricting to the legislature.

“‘Harper I’ claimed to divine the holy grail, a standard by which so-called partisan gerrymandering could be measured and enforced by the courts,” the lawyer said.

“But as ‘Harper II’ demonstrated, that was simply a fool’s errand.”

Justice Richard Dietz, a new Republican member of the court, asked if the fact that the U.S. Supreme Court was considering Moore v. Harper deprived the North Carolina court of the authority to overrule ‘Harper I.’

Strach replied: “This court certainly has the authority to overrule ‘Harper I’ notwithstanding Moore v. Harper.”

Justice Anita Earls, a Democrat, engaged in a pointed exchange with Strach.

Earls said the original trial court found that the 2021 maps “resiliently safeguarded electoral advantage for Republicans to ensure that Republicans will retain majorities in North Carolina’s congressional district and the General Assembly, even when voters clearly preferred the other party, that they were among the most extreme gerrymanders possible, and were carefully crafted for Republican advantage.”

She continued, saying, “you’re asking us to say that in spite of those facts, this North Carolina Constitution offers no protection to voters?”

“The North Carolina Constitution does not speak to partisanship and redistricting,” Strach replied.

“So then that would mean that if the General Assembly had a redistricting criteria that said the partisan makeup of North Carolina’s congressional districts must be to elect a congressional delegation that’s 11 Republicans and three Democrats, it would be beyond the power of this court to prohibit that?” the justice asked the lawyer.

Strach replied: “Some things, Your Honor, are beyond the power of this court. Some things are beyond the power of political actors in this, in our system.”

So the legislature should have “free rein to enact legislative districts that give extreme partisan advantage to one political party rather than” adhering “to some measures of fairness?” Earls said.

The question is not something on which the court can rule, Strach said.

“This court does not have the power to address that issue. And part of the reason this court does not have the power to address that issue is because it does not have the tools to answer the question,” he said.

It is unclear when the court will issue a ruling.

This article by Matthew Vadum appeared March 14, 2023, in The Epoch Times.

Photo: Official portrait of Tim Moore, Speaker of the North Carolina House of Representatives