WASHINGTON — 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.
Such rehearings by the court are exceedingly rare. In fact, North Carolina’s Supreme Court ordered as many rehearings on Friday as it has in the past three decades. What also made the rehearings exceptional was that the cases had been decided less than two months ago — by a court that, at the time, contained four Democratic and three Republican justices.
The court that voted to rehear the cases has a 5-to-2 Republican majority, courtesy of the party’s sweep of state Supreme Court races in November. And the potential beneficiary of those reviews is the Republican leadership of the state General Assembly, which had both drawn the political map and enacted the voter ID law that the court struck down in December.
Lawyers for those leaders asked the court to reconsider the cases in petitions filed last month.
“Quite literally the only thing that changed is the court’s composition,” Joshua Douglas, a professor and expert on state constitutions at the University of Kentucky College of Law, said in an interview. “The whole thing simply smells of partisanship.”
Not everyone agrees, of course. Jeanette Doran, the president of the conservative-leaning North Carolina Institute for Constitutional Law, said she saw ample reason to reconsider the two decisions. “Both of those can fairly be described as partisan” in their own right, she said. “They deviate pretty substantially from existing North Carolina case law.”
Given that such rulings set precedents that can stand for decades, taking a second look — as the court’s rules specifically allow — was not unreasonable, she said.
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“That’s happened in the past,” she added. “It’s been done before.”
It has, but not often. A dissent to Friday’s orders filed by the court’s two Democratic justices noted that the court had agreed to rehearings in only two of 214 requests filed since January 1993.
Those justices, Anita Earls and Michael R. Morgan, blasted the rehearing orders in the dissent, calling them “an exercise of raw partisanship” that would undermine public trust in the court.
“It took this court just one month to send a smoke signal to the public that our decisions are fleeting and our precedent is only as enduring as the terms of the justices who sit on the bench,” they stated.
The degree of partisanship in North Carolina’s judiciary is mirrored in other politically divided states like Wisconsin and Ohio, where judges are increasingly perceived as political actors, not neutral arbiters of the law.
Supreme Court races in North Carolina were nonpartisan affairs until the Republican legislature ordered candidates to run as partisans, with R’s and D’s beside their names on Election Day ballots, beginning five years ago. The Republican legislature in Ohio made the same move beginning with last November’s court races. In both instances, the changes were widely seen as politically motivated — and, indeed, both supreme courts have since tilted to the right.
Wisconsin Supreme Court elections are ostensibly nonpartisan, but candidates run as liberals or conservatives who almost invariably support one party or the other on contentious issues. Arguably the most important election in America in 2023 is the April 4 contest for a seat on the Wisconsin Supreme Court, where Democrats are trying to regain liberal control of a court on which conservatives hold a 4-to-3 majority. Wisconsin Democrats want to overturn the state’s 1849 law prohibiting abortion in nearly all cases, and the court has the potential to make crucial rulings on election issues in a key swing state in 2024 if there are presidential election challenges.
And there, as in Ohio and North Carolina, partisan control of the court is seen as the key to preserving or undoing gerrymandered political maps that have locked in Republican dominance of the state legislature for more than a decade.
In those and other states, once-sleepy races for the bench have become multimillion-dollar affairs financed by ideological PACs, wealthy donors and, often, the political parties themselves.
Ms. Doran said that it is impossible to completely divorce politics from the bench. “Politics is inherently part of governance, and courts are part of our government,” she said, adding that Republican victories in November’s court races showed that voters wanted a more conservative judiciary.
But Professor Douglas said the extent of court politics, not its existence, is the problem. “We can talk about the merits of electing judges in general or electing judges on a partisan basis,” he said. “There’s something to say for judges bringing their own backgrounds and ideologies into decision making.
“But they shouldn’t simply be politicians in robes, because it makes it hard to feel like there’s a meaningful check on the legislature.”
In the case of North Carolina, Ms. Doran pointed out, rehearing a case is not a guarantee that the rulings under review will be thrown out. “I think we can anticipate that there are going to be very thoughtful arguments by all the parties involved,” she said.
Still, legal experts say they will be surprised if the new court upholds the work of the old one, and the stakes in the outcome are substantial.
Example one is the Republican legislative leaders’ request to rehear 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, and established the precedent that partisan gerrymandering in North Carolina violated the State Constitution.
The court did not grant the Republicans’ request to overrule the ruling without a hearing. But it did order the two sides in the case to offer arguments on whether the House and legislative maps used in November should be thrown out.
That February ruling is also at issue in what is expected to be among the most consequential cases to come before the U.S. Supreme Court this term. In it, North Carolina Republicans argue that the U.S. Constitution gives state legislatures total power — without any judicial oversight — to determine the rules and district boundaries for federal elections.
That case is likely to be decided sometime this spring. A ruling favoring the Republican legislators would not only invalidate the maps drawn as a result of the ruling last February, but also vastly increase the power of state legislatures over voting and election issues nationwide.
Some legal experts have speculated that a decision by the state Supreme Court to invalidate the maps could make the case before the U.S. Supreme Court moot, but that would appear to depend on the substance of any decision by the North Carolina court.