Candidate For The Craziest State Supreme Court: North Carolina

February 06, 2023 Francis Menton @ Manhattan Contrarian

If you ever wonder what kind of rulings we might get if the progressive Democrats some day achieve full control of the U.S. Supreme Court, you can try looking to some of the state Supreme Courts that come under Democrat control. One of my favorites is the Supreme Court of North Carolina.

North Carolina is a purple state, and generally tending more to red than blue. But the justices of its state Supreme Court are elected. In 2016, in a nominally “non-partisan” election, the Democrats took control of the Court by a narrow 4-3 majority. Meanwhile both houses of the state legislature have been controlled by Republicans since 2011. The Governor has been a Democrat since 2016.

Before going further, I should mention that after 2016 the Republican legislature amended the election law for court seats to allow candidates to declare party identification. Then there were two elections for Supreme Court justice in November 2022, both involving seats previously held by Democrats. The Republicans won both of those races — likely reflecting voter reaction to the shenanigans of the Court during six years of Democrat control. As of now, the Court has flipped to a 5-2 Republican majority.

With that background, here is the headline from yesterday’s New York Times: “On North Carolina’s Supreme Court, G.O.P. Justices Move to Reconsider Democratic Rulings.” It seems that the newly-constituted North Carolina Supreme Court has wasted no time in granting reconsideration of two major decisions that came down from the prior Court just a few weeks ago. From the Times:

An extraordinary pair of orders by North Carolina’s Republican-controlled Supreme Court is highlighting how the partisan tug of war has pervaded the state’s courts and, by extension, the nation’s. On Friday, the court moved to rehear two major voting rights cases that it had previously decided, one striking down a gerrymandered map of State Senate districts and another nullifying new voter identification requirements.

In The New York Times spin, it’s a group of highly partisan Republicans abusing their judgeships for political gain. Really?

Let’s consider first the case on voter identification requirements. In 2018 North Carolina enacted a requirement for citizens to present valid identification in order to vote. This was not done by statute, but rather by amendment to the North Carolina Constitution. Amending the North Carolina Constitution requires that the proposed amendment be passed by 3/5 majorities of both houses of the legislature, and then go to a referendum of the voters. According to the Carolina Journal here, the voter ID amendment obtained the requisite legislative majorities, and then was passed by the voters in 2018 by a majority of 55.49% — perhaps not a landslide, but also not close. The referendum was state-wide, and therefore inherently not possible to gerrymander.

A case challenging the voter ID amendment came before the Democrat-controlled Supreme Court in August 2022. Now, how exactly are these Supreme Court justices going to get around a voter ID provision that by this time is right there in the state Constitution itself? Actually, it’s not hard if you are a results-oriented progressive. At the time that the voter ID amendment passed the legislature, litigation challenging the 2012 redistricting of the state had been working its way through the state courts for years, and a three-judge state court panel had ruled that the existing districting was a partisan gerrymander, although that issue had not reached the state Supreme Court. So here is an excerpt from the majority opinion of the North Carolina Supreme Court (as quoted in the Carolina Journal):

The issue is whether legislators elected from unconstitutionally racially gerrymandered districts possess unreviewable authority to initiate the process of changing the North Carolina Constitution, including in ways that would allow those same legislators to entrench their own power, insulate themselves from political accountability, or discriminate against the same racial group who were excluded from the democratic process by the unconstitutionally racially gerrymandered districts. . . . We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators’ authority to initiate the process of amending the constitution under these circumstances.”

And thus the state Supreme Court purported to disregard a provision of the state Constitution that had only recently been passed by a solid majority of the voters. Consider just how extraordinary this ruling was. If the Court was right that it could ignore the constitutional provision on the ground that the legislature that put it before the voters had been improperly constituted, then theoretically the Court could ignore every other enactment of the legislature as well, and just take over running the state. And weren’t all the other provisions of the North Carolina Constitution also adopted in some manner that could be subjected to criticism in hindsight? I’ll bet almost all of the document was written by white male segregationists — and Democrats no less.

The Court’s decision was written by Justice Anita Earls. Here is a picture of Justice Earls, again from the Carolina Journal. Note the crazed look in her eyes. This is a person who clearly knows the required path to perfect justice and fairness!

Also subject to a request for rehearing by the newly-constituted Supreme Court is a December ruling from the prior Court throwing out the 2022 redistricting maps adopted by the legislature for state legislative races. The Times notes that if that decision gets reconsidered, it will also implicate a prior decision from February 2022 invalidating North Carolina’s congressional maps.

[T]he Republican legislative leaders’ [have requested rehearing of] the December gerrymandering ruling — an order by the Democratic justices to redraw a map of State Senate districts. In that request is a much bigger appeal: for the court to overrule, without any rehearing, a landmark ruling last February that newly drawn congressional and state legislative maps were unconstitutional partisan gerrymanders. The ruling led to new maps that probably cost Republicans three or four seats in the U.S. House of Representatives in the November elections. . .

I have no way of knowing if the redistricting maps put forth by the Republican legislature in early 2022 were in the normal run of partisan gerrymandering, versus some extreme version of the art. But I do note that the Times says that these 2022 decisions “established the precedent that partisan gerrymandering in North Carolina violated the State Constitution.” 

It’s funny that Democrats controlled the state government essentially without interruption from the Civil War until 2011, and somehow that issue never came up. I guess all of their redistricting must have been perfectly fair.  Anyway, I think that the North Carolina voters have been able to decide for themselves who are the ones “politicizing” the state Supreme Court.