Emily Lau, Staff Attorney
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Earlier this year, the Supreme Court of North Carolina invalidated the congressional and state legislative district maps the North Carolina General Assembly drew following the 2020 census. The fight over the state’s congressional map is now before the U.S. Supreme Court in Moore v. Harper. That attention-getting case will consider whether the “independent state legislature theory,” a proposed interpretation of the federal constitution, limits the role of state courts and constitutions in regulating federal elections. If the Supreme Court ultimately accepts that theory, its ruling may well preclude state courts from overturning congressional maps under a state’s constitution, as the North Carolina Supreme Court did.
Although Moore has been the case in the spotlight, the Supreme Court of North Carolina is pressing ahead this week and will hear another round of arguments about the state’s congressional map (which could be affected by the U.S. Supreme Court’s Moore decision) and its state senate maps (which, as maps for state elections, would not). Citing “the importance of the issues to the [state’s] constitutional jurisprudence,” the Court granted a motion for expedited hearing over the General Assembly’s motion to dismiss its appeal.[1]
At the heart of the case—Harper v. Hall—is the question of where the legislature’s discretion ends and the judiciary’s authority begins. The North Carolina Constitution places the decennial task of redistricting in the hands of the General Assembly.[2] The General Assembly’s post-2020 maps drew accusations of gerrymandering,[3] and a North Carolina trial court agreed. It found that all three of the maps enacted by the General Assembly were products of “intentional, pro-Republican partisan redistricting.”[4] Based on the trial court’s factual findings, the North Carolina Supreme Court then held that General Assembly’s maps violated various provisions of the North Carolina Constitution. Specifically, the Court concluded that the maps violated the free elections clause—which guarantees that “All elections shall be free”[5]—because partisan gerrymandering prevents elections from reflecting the will of the people;[6] the equal protection clause, by systematically diluting the power of certain voters on the basis of partisan affiliation; and the free speech and freedom of assembly clauses, because diluting the influence of voters based on previous voting behavior constitutes viewpoint discrimination.[7] The court ordered the trial court to oversee the redrawing of the electoral maps.
Following the North Carolina Supreme Court’s ruling, the General Assembly adopted updated maps. The trial court approved two of these redrawn maps—the state house and senate maps— but rejected the new congressional map. The court then proceeded to adopt a modified version of the General Assembly’s congressional map with assistance from the court’s appointed special masters and the special masters’ redistricting expert Dr. Bernard Grofman.[8] Both parties appealed. Plaintiffs challenged the state senate map, and the General Assembly challenged the modified congressional map.[9]
It is those challenges that the North Carolina Supreme Court is now considering. Plaintiffs argue that, although the state senate map may have some statistical features of a fair map, it nonetheless fails to “give all voters substantially equal opportunity to translate votes into seats.”[10] This, they argue, is the constitutional test under which maps should be assessed for compliance with the Court’s earlier decision, not whether the map satisfies any single dispositive statistical range of acceptability.[11]
In response, the General Assembly contends that the plaintiffs’ approach to evaluating redistricting maps would amount to the court blindfolding the legislature.[12] Without deference to the General Assembly’s choice of metrics for evaluating whether a map constitutes an unconstitutional gerrymander, it contends that the General Assembly will be “disestablished” as the state’s redistricting authority because it will be unable to assure that it is acting constitutionally at the time it draws the lines.[13]
Meanwhile, with respect to the congressional map, the General Assembly argues that the trial court failed to give appropriate deference—“a strong presumption of constitutionality”—to the General Assembly.[14] Plaintiffs respond that such discretion is not appropriate unless there is evidence that “voters of all political parties [will have] substantially equal opportunity to translate votes into seats across the plan.”[15] In other words, plaintiffs argue that courts must make a threshold inquiry into the constitutionality of the maps, and the General Assembly’s discretion is limited to choosing among maps that pass that threshold test. (Of course, if the U.S. Supreme Court in Moore v. Harper embraces the independent state legislature theory, that could significantly diminish or eliminate the ability of the North Carolina courts to question the General Assembly’s congressional line-drawing decisions; it would not affect the state courts authority over state legislative lines.)
Beyond determining what maps will govern North Carolina elections in 2024 and beyond, the parties’ arguments in Harper v. Hall reveal a deeper struggle over what the state’s constitution requires. When is a map fair enough? How many statistical measures of fairness should, or must, a map meet to be considered constitutional? Under what circumstances is a court empowered to overturn the legislature’s work?
Argument starts at 11:00 a.m. ET on Tuesday, October 4, 2022, and can be viewed live on the Supreme Court of North Carolina’s YouTube channel.
[1] Order, Harper v. Hall, No. 413PA21 (N.C. July 28, 2022).
[2] N.C. Const. art. II, §§ 3, 5.
[3] The maps drawn by the General Assembly following the 2010 census were also the subject of litigation alleging partisan and racial gerrymandering. E.g., Rucho v. Common Cause, 139 S.Ct. 2484 (2019); Cooper v. Harris, 137 S.Ct. 1455 (2017); Dickson v Rucho, 371 N.C. 477, 818 S.E.2d 292 (N.C. 2015).
[4] Harper, 868 S.E.2d at 515.
[6] Harper, 868 S.E.2d at 546.
[7] Id.
[8] Joint Brief of Plaintiffs-Appellees at 4, Harper v. Hall, No. 413PA21 (N.C. Sept. 6, 2022).
[9] The legislature also appealed the trial court’s refusal to disqualify two assistants to the special master who had communicated the plaintiffs’ experts. Legislative Defendants-Appellants’ Brief at 34, Harper v. Hall, No. 413PA21 (N.C. Sept. 23, 2022).
[10] Brief of Plaintiffs-Appellants at 22, Harper v. Hall, No. 413PA21 (N.C. June 27, 2022).
[11] Id. at 23.
[12] Legislative Defendants-Appellants’ Brief at 2.
[13] Id.
[14] Id. at 4. The legislature also appealed the trial court’s decision to reject their congressional map to the Supreme Court, arguing that “the power to regulate federal elections lies with [s]tate legislatures alone, and the [federal Elections Clause] does not allow state courts, or any other organ of state government, to second-guess the legislature’s determination.” Brief for Petitioners at 39, Moore v. Harper, No. 21-1271 (U.S. Aug. 29, 2022).
[15] Joint Brief of Plaintiffs-Appellees at 18-19, Harper v. Hall, No. 413PA21 (N.C. Sept. 6, 2022).