The US supreme court ruled in favor of North Carolina voting rights groups last week, which celebrated with one breath and with the next condemned the new election laws and political maps being pushed by the state’s Republican-controlled legislature.
“We are still in a five-alarm fire here in North Carolina,” said Gino Nuzzolillo, campaign manager for the state’s Common Cause branch, which was one of the plaintiffs that won in the case the supreme court ruled on.
North Carolina Republicans, including Tim Moore, the speaker of the state’s house of representatives whose name is on the case, Moore v Harper, had asked the supreme court to take up a highly controversial legal theory that would have given him and legislators around the country immense power over setting state-level federal election laws.
Even though the high court rejected that theory in a 6-3 vote, preventing a nationwide shift in checks and balances over writing election laws, North Carolina’s Republican legislators can already act largely unchecked by the other branches of state government. They have a veto-proof supermajority in the state legislature and the now Republican-controlled state supreme court signaled it would not act as a check on legislative power, including by taking the rare step to reverse two recent decisions by the previously Democrat-controlled court to re-allow partisan gerrymandering and require voter ID.
Moore v Harper originated in state court as a partisan gerrymandering case, and as part of that litigation state courts put temporary maps in place for the 2022 elections. In a statement about the supreme court decision, Moore confirmed that the legislature will draw new maps.
“We will continue to move forward with the redistricting process later this year,” Moore said.
North Carolina is the only state where the governor cannot veto election maps drawn by the legislature, meaning that not even split-party leadership of the executive and legislative branches is a check on gerrymandering.
For voting rights groups in North Carolina, this political reality makes the supreme court’s other voting rights decision this term that much more important. In Allen v Milligan, a case out of Alabama, the court rejected arguments from Republicans to do away with another part of the 1965 Voting Rights Act. This leaves an open lane to sue in federal court to overturn maps that dilute the voting power of racial minorities.
Even with the victories in these two cases, federal judicial protections for voting rights are still the weakest they’ve been since at least 2013, when the supreme court crippled the Voting Rights Act. Still, voting rights groups are celebrating these two rulings because they preserve what legal tools are left at the federal level to protect the significant gains in voting access and fair representation since the civil rights era.
What’s next
Moore and his Republican colleagues are working on three election bills, which they have enough votes to pass and overturn a likely veto from the Democratic governor, Roy Cooper, as long as no Republicans defect.
S747 is an omnibus election bill that would make wide-ranging changes to voter access, including requiring all same-day registration voters to cast provisional ballots and changing the deadline for mail ballots.
S749 would change the structure and powers of state and county boards of elections, making them deadlocked between parties, rather than having a majority vote favoring the party in control of the governor’s mansion, as it is now.
H772 would change rules around poll observers, including the possible criminalization of elections officials who are found to interfere with observers.
In the fall, the legislature will turn its attention to redistricting maps for seats in the US House of Representatives. North Carolina is a purple state, currently controlled by a Democratic governor but with a Republican supermajority in the legislature. Under the current map, North Carolina sent seven Democrats and seven Republicans to Congress.
The redrawn map this fall will probably look similar to the map Republicans first proposed in 2021, which would likely have given Republicans a 10-4 advantage, according to Western Carolina University political science professor Chris Cooper. He testified as an expert witness for Common Cause in state court that the congressional map, as well as the state map’s counterparts, were partisan gerrymanders.
He anticipates that Democratic representatives Jeff Jackson, Kathy Manning and Wiley Nickel will have their districts redrawn to favor Republican candidates.
Leaders from Common Cause and the North Carolina League of Conservation Voters, both groups that sued the state and won in the Moore v Harper case, said they oppose all three bills and will oppose redistricting that dilutes the votes of political or minority groups.
Public polling by the Associated Press showed that a majority of people in both parties see gerrymandering as a major problem, and research shows it is a key driver of political polarization and protecting politically extreme candidates.
Neither Moore nor Ralph Hise, chair of the state senate’s redistricting and elections committee, responded to emailed questions about how the public can participate in legislative action around the election bills or redistricting, about whether the legislature will consider racial data for redistricting or about limiting partisan bias in drawing maps.
In 2021, North Carolina Republicans wrote rules that they could not consider racial data when drawing political maps. At the time, the Southern Coalition for Social Justice (SCSJ), whose attorneys represented Common Cause in the Moore litigation, argued they should have used racial data for fair representation.
In light of the Allen v Milligan ruling, the coalition’s senior voting rights lawyer, Hilary Harris Klein, said the legislature will have to consider racial data this time or be in violation of federal law.
Using racial data, or not, will be a key point in the development of possible federal litigation to challenge discriminatory maps. Klein stressed that the SCSJ will advocate for equitable maps during the drawing process because the organization does not want to resort to litigation.
Weakness of democratic institutions
North Carolina Republicans have a long history of passing racially and politically discriminatory voting maps and election laws, according to several federal and state court judgments since 2013.
Since 2016, voting rights groups have been able to turn back some of those laws with a Democratic-majority state supreme court. But as of 2022, Republicans control the court, and will at least until 2028.
“The state courts are probably a closed avenue to any further vindication of voter’s rights under the state constitution,” Nuzzolillo said.
Relying on federal courts has been made increasingly difficult by the US supreme court under its chief justice, John Roberts.
“The court in the last 10 years has done extraordinary damage to democratic institutions,” said Carolyn Shapiro, professor at the Chicago-Kent College of Law. She wrote a brief to the supreme court in the Moore v Harper case supporting the voting rights groups.
She points to the 2013 Shelby county decision, in which Roberts wrote the opinion to strike down the preclearance section of the Voting Rights Act and allowed states to immediately pass laws aimed at voter suppression. In the Abbott v Perez and Rucho v Common Cause cases from 2018, the court made it harder to win racial gerrymandering cases and impossible to bring political gerrymandering cases in federal courts. Then, in 2021, in Brnovich v DNC, the court made it harder to bring vote denial claims, which are the claims voting rights groups could try to bring against the election laws that North Carolina’s legislature is currently considering.
The reason voting rights groups saw this year’s rulings as huge victories was because expectations were so low, Shapiro said.
That Moore v Harper and Allen v Milligan were even taken up is an aberration from the historically typical strategy of the supreme court, showing how far the court and political thinking has shifted, according to Rick Su, a law professor at the University of North Carolina.
The rulings mainly kept precedent in place rather than adding any rights or protections, Su said. That responsibility would fall to Congress.
“We held the line,” Klein said. “In this climate, that is a huge win.”
