Emily Lau, Staff Attorney
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North Carolina spent much of the year in the national legal spotlight due to Moore v. Harper, the prominent U.S. Supreme Court case that could limit the authority of state courts and state constitutions over federal elections through the controversial “independent state legislature theory.” Yet while most eyes have been on SCOTUS, the North Carolina Supreme Court has continued to address important cases of its own.
Particularly notable in 2022 were several significant rulings from the Court affecting state-level democracy and public law. These decisions revealed a deep divide between the Court’s Democratic majority and Republican minority on the question of the Court’s role in government and its power to enforce the state’s Constitution.
Justices in North Carolina are chosen in partisan elections[1] and, on January 1, 2023, two new justices, both Republicans elected in November 2022, took their oaths of office—flipping partisan control of the Court.[2] The Court’s new Republican majority is expected to hold at least until 2029.[3] Given the stark differences between the two sides, this partisan shift will likely affect major cases involving voting administration, school funding, and more in the coming years. Indeed, the state legislature has already sought reconsideration of two of the Court’s major 2022 decisions. In this way, the situation in North Carolina stands as a reminder of the importance of state judicial elections.
This report recaps some of the Court’s major 2022 decisions, discusses the impact of the recent midterm election, and previews major cases in 2023 that the Court’s shift is likely to affect.
The Court Made a Strong Stand as a Co-Equal Branch of Government in 2022
The Court issued four key opinions in 2022, all decided on party lines, which strongly asserted the Court’s authority—and obligation—to invalidate unconstitutional legislative decisions. The Court described this obligation in Hoke County Board of Education v. North Carolina, writing that the North Carolina “Constitution’s Declarations of Rights is neither aspirational nor advisory; it is a mandate” that the Court “must honor,” especially when other branches do not.[4] Accordingly, the Court forcefully rejected continual deference to the legislature when the legislature fails to act constitutionally.[5]
Harper v. Hall
After the U.S. Supreme Court’s 2019 decision in Rucho v. Common Cause, which deemed partisan gerrymandering claims nonjusticiable in federal court,[6] litigants have turned to state courts for gerrymandering remedies. The plaintiffs in Harper v. Hall did just that in North Carolina, challenging both the congressional and state legislative maps adopted by the General Assembly in 2021.[7] The North Carolina Supreme Court agreed that unconstitutional gerrymandering was afoot.[8]
More specifically, the North Carolina Supreme Court heard Harper v. Hall twice in 2022. The first time, the Court evaluated the initial claim that the legislature’s maps were the result of partisan gerrymandering. The Court concluded that the challenged maps all violated the North Carolina Constitution’s Free Elections Clause,[9] which states that “[a]ll elections shall be free.”[10] Partisan gerrymandering, the Court wrote, “substantially infringe[s] upon plaintiffs’ fundamental right to equal voting power”[11] and “prevents elections from reflecting the will of the people impartially.”[12] On remand, the trial court accepted the General Assembly’s remedial state legislative maps but found that the congressional map was still unconstitutionally gerrymandered. The trial court, rather than having the legislature go back to the drawing board, modified the remedial congressional map to bring it into constitutional compliance and adopted that new map for the 2022 election.
The second time, the Court reviewed the trial court’s decision (on remand) to accept the legislature’s remedial state legislative maps and reject the remedial congressional map. The Court reaffirmed that the standard for determining whether a redistricting map is constitutional is whether “voters of all political parties [have] substantially equal opportunity to translate votes into seats.”[13] Under this standard, the Court affirmed the trial court’s rejection of the remedial congressional map and adoption of the court-modified map, agreeing that voters need not wait indefinitely for their legislators to draw a constitutional map. However, the Court concluded that the trial court erred in upholding the remedial state senate map. The Court remanded the case back to the trial court to oversee modifications to that map.
Writing in dissent, Chief Justice Newby criticized the majority for failing to defer to the legislature’s policy choice of statistical measures to generate a map compliant with the ruling in Harper I.[14] Going further, the dissenting justices would also have deemed partisan gerrymandering claims a nonjusticiable political question.[15]
It is the fight over the congressional map that SCOTUS will decide in Moore v. Harper. Although the North Carolina Supreme Court grounded its analysis in the North Carolina Constitution, the question before SCOTUS is whether the federal constitution constrains state courts’ ability to address partisan gerrymandering in congressional maps.
NC NAACP v. Moore
The Court confronted gerrymandering again in NC NAACP v. Moore, where it considered a broader and more novel remedial question. The Harper decision (like similar rulings in other states) provides for new maps to be drawn but does not constrain the gerrymandered legislature in the meantime. In contrast, NC NAACP assessed whether plaintiffs have any recourse for actions taken by an unlawfully constituted legislature.
In 2017, a federal court held that dozens of North Carolina state legislative districts, amounting to nearly 70% of state house and senate districts, were unlawfully gerrymandered.[16] In 2018, the legislators elected under these gerrymandered districts initiated two state constitutional amendments: one to require photo voter ID and one to lower the constitutional cap on the state income tax. The NC NAACP plaintiffs argued that these amendments were illegitimate and that an unlawfully elected legislature could not constitutionally refer constitutional amendments to voters.
The North Carolina Supreme Court largely agreed.[17] The Court anchored its ruling in the state constitution’s commitment to democracy, writing that principles of popular sovereignty and democratic self-rule form the “beating heart” of North Carolina’s government.[18] With those principles in mind, the Court observed that lawmakers do not legitimately exercise sovereign power when they are unlawfully elected.[19] Under the “de facto officer doctrine,” such lawmakers can continue to exercise ordinary lawmaking authority to preserve the functioning of government.[20] The Court concluded, however, that the de facto officer doctrine could not go so far as to authorize unlawfully elected lawmakers to initiate constitutional amendments that had the potential to “transform North Carolina’s theory of government and restructure its political processes.”[21]
So, when are constitutional amendments referred by unconstitutionally elected lawmakers invalid? According to the Court, the first step is to determine whether the number of “legislators elected due to an unconstitutional gerrymander could have been decisive in enacting a bill proposing a constitutional amendment.”[22] If yes, the court must then assess whether the challenged amendment will have the effect of immunizing legislators from democratic accountability, perpetuating the exclusion of a category of voters from the political process, or intentionally discriminating against the same category of citizens discriminated against by the gerrymandered maps.[23] If any one of these factors is present, the court is “require[d]” to invalidate the challenged amendment.[24]
The Court’s three conservative justices disagreed. Again, the dissent would have held that the plaintiffs’ claims were nonjusticiable political questions. The majority, Justice Berger wrote, was “preventing another [branch of government] from executing its primary duties.”[25]
Holmes v. Moore
The Court separately addressed the validity of the voter ID statute that the legislature passed to implement the 2018 constitutional amendment at issue in NC NAACP. In Holmes v. Moore, the Court held that the law, which required voters to present one of ten forms of photo ID before casting a ballot, was invalid. Based on the trial court’s findings, the Court determined that the law had been passed with discriminatory intent and was therefore unconstitutional.
In discerning discriminatory intent, the Court considered the context of the law’s passage: The gerrymandered legislature had rushed to pass the statute over Governor Cooper’s veto during a lame-duck session—immediately after voters approved the amendment and before new legislators, elected under new maps, could take office. The Court also considered the impact the law would have on African American voters, the state’s history of African American voter suppression, and the legislature’s experience with prior unconstitutional voter ID legislation.[26]
In addition to applying principles of anti-discrimination, the Court also emphasized, again, the democratic principles underlying North Carolina’s representative government. Justice Earls, writing for the majority, underscored the fundamental nature of the right to vote as “preservative of all other rights.”[27] In contrast, the dissent, written by Justice Berger, drew from federal equal protection case law and concluded that the majority erroneously failed to apply the presumption of good faith established in SCOTUS precedent.[28]
This is just one case in the long fight over voter ID in North Carolina, and it is unlikely to be the last. The legislature could pass a new voter ID law even if the 2018 amendment is ultimately invalidated. The legislature now features a Republican supermajority in the state senate and a Republican majority in the state house. It is therefore possible that the North Carolina Supreme Court will once again confront questions about voter ID in the coming years.
Hoke County Board of Education v. North Carolina
Beyond these democracy cases, the Court also spoke directly to the judiciary’s place within state government in Hoke County Board of Education v. North Carolina, an education funding case. The case has a long backstory: In 1997, the North Carolina Supreme Court ruled, in Leandro v. North Carolina, that the state has a constitutional obligation to ensure that all children have access to “a sound basic education.”[29] Then, in 2004, the Court ruled in Hoke County that the State’s educational funding mechanism unconstitutionally failed to provide all students with that sound basic education—and therefore the legislature had a responsibility to correct this deficit.[30] In the latest iteration of Hoke County, eighteen years later, the Court determined that the State’s funding mechanism still failed to fulfill the State’s constitutional duty to North Carolina students.
In deciding on a remedy, the Court emphasized the duration of the state’s constitutional violation. For twenty-five years, the Court had been telling the State that some North Carolina children were begin deprived of their constitutional rights. For those twenty-five years, the legislature had an opportunity to remedy this constitutional violation. In the Court’s view, a judicial decision to make students wait any longer would itself be a constitutional violation:
For twenty-five years, the judiciary has deferred to the executive and legislative branches to implement a comprehensive solution to this ongoing constitutional violation. Today, that deference expires. If this Court is to fulfill its own constitutional obligations, it can no longer patiently wait for the day, year, or decade when the State gets around to acting on its constitutional duty “to guard and maintain” the constitutional rights of North Carolina schoolchildren.[31]
The Court ultimately asserted that it has the power to order an appropriate remedy where there is a longstanding, ongoing constitutional violation that the legislature failed or refused to remedy. The Court affirmed the trial court’s order directing state officials to transfer the funds necessary to implement the State’s Comprehensive Remedial Plan[32] to the state agencies responsible for executing the plan. Extraordinary circumstances could justify extraordinary remedies, even those remedies that “encroach[] into the traditional responsibilities of [the Court’s] coequal branches of government.”[33] On this point, the Court’s three Republican justices disagreed. Justice Berger’s dissent called the majority’s remedy a “blatant usurpation of legislative power by th[e] Court . . . violative of any notion of republican government and fundamental fairness.”[34]
The Balance of Power on the Bench has Shifted
Following the retirement of Justice Robin Hudson, who would have faced mandatory retirement in 2024, and the expiration of Justice Sam Ervin IV’s term, two seats were up for election in 2022. Both seats were won by Republicans, Richard Dietz and Trey Allen, flipping the balance of partisan power on the court from a 4-3 Democratic majority to a 5-2 Republican majority.
This change in the court’s balance of power already appears to be affecting litigants’ decisions. Take, for example, Cooper v. Berger.[35] This case, in which Governor Roy Cooper (a Democrat) challenged the legislature’s authority to appoint members of the Rules Review Commission,[36] was originally scheduled to be argued before a trial court panel the day after the midterms, with a ruling presumably to follow only after the Supreme Court’s composition changed. A week prior to the election, the Governor voluntarily dismissed the case[37] despite having seemingly strong arguments under North Carolina Supreme Court precedent.[38]
Similarly, plaintiffs in Planned Parenthood South Atlantic v. Moore also moved to voluntarily dismiss their complaint following the election.[39] The plaintiffs had argued five measures that would restrict access to abortions in North Carolina violated the state constitution,[40] invoking prior statements from the North Carolina Supreme Court that the North Carolina Constitution can offer greater protections than the U.S. Constitution.[41]
Of course, not all plaintiffs will or can dismiss pending litigation. Some plaintiffs may be inclined to take the risk of a bad decision given the alternative of proceeding without judicial intervention. And on the flip side, a change in composition will presumably prompt some parties to bring cases they would not have brought before the old court.
Cases to Watch in 2023
In the wake of the changes discussed above, 2023 is shaping up to be another critical (and contentious) year for the North Carolina Supreme Court. In fact, some familiar cases decided just last year may be making their way back up to the Court. Accordingly, the coming year will provide crucial insight into how this new Court views its recent precedent and will apply stare decisis.
Harper v. Hall
The state legislature has already filed a Petition for Rehearing urging the Court to overturn both Harper I and Harper II.[42] If the Court grants rehearing, the new Republican majority may well renounce its prior ruling and side with the legislature.
Even if the Court does not grant the legislature’s petition, Harper v. Hall may still return to the Court. After holding that the remedial state senate map remained unconstitutionally gerrymandered, the Court remanded the case to the trial court to oversee the redrawing and adoption of a new map. Any party dissatisfied with the trial court’s ruling on remand could choose to seek further review. The legislature will also be called upon to redraw the state’s congressional map since the map used in the 2022 election was a temporary remedy adopted by the trial court.[43] The Republican-controlled legislature can act without bipartisan support[44]—and this time they can do so knowing that if the maps are appealed, the Court may be more receptive to their position. Whether a party would choose to appeal such maps remains to be seen.
Holmes v. Moore
The Court may not have to wait for the legislature to pass another voter ID law before it can revisit the decision in Holmes v. Moore. Like in Harper, the legislature has filed a Petition for Rehearing in Holmes, asking the Court to overturn the decision invalidating the legislature’s most recent attempt to implement a voter ID law. If the Court decides to rehear Holmes, the dissent issued in Holmes may suggest that the Court would be receptive to setting aside its prior ruling and finding the voter ID law constitutional.
Community Success Initiative v. Moore
Already on the Court’s docket for 2023 is Community Success Initiative v. Moore.[45] The plaintiffs in Community Success Initiative are challenging a North Carolina statute that requires North Carolinians who have been convicted of a felony be “unconditionally discharged”[46] from incarceration, probation, parole, or a suspended sentence before their voting rights are restored. Because the payment of court costs, fees, and restitution are a condition of probation, individuals convicted of felonies and placed under community supervision must have the financial means to discharge these obligations before regaining the right to vote.
Plaintiffs allege that the requirement of unconditional discharge—which disenfranchises individuals who are otherwise eligible to vote but serving probation, parole, or a suspended sentence, or who cannot afford to pay court fees—violates the North Carolina Constitution. The trial court ruled in favor of the plaintiffs, determining that the denial of franchise to individuals on probation, parole, or post-release supervision violates the state constitution’s Free Elections Clause and Equal Protection Clause.[47]
Justice Berger’s dissent in Holmes v. Moore, arguing for a stronger presumption of legislative good faith, may provide some insight into how the Court will approach this question. Both Holmes and Community Success Initiative involve constitutional provisions directing the legislature to enact implementing legislation. Both also involve enacted laws that would or do have the effect of disproportionately disenfranchising African American voters. The extent to which the newly constituted Court adheres to or diverges from the reasoning of Holmes may illuminate how this Court will approach other voting rights issues.
NC NAACP v. Moore
It is possible that the Court will also be asked to revisit NC NAACP v. Moore this year. As discussed, the Court determined that amendments referred to voters by a gerrymandered legislature may be unconstitutional under certain circumstances. The Court then remanded the case back to the trial court for an evidentiary hearing to determine if the circumstances for invalidating the two challenged amendments exist.
As of mid-November, the appellate court had yet to return the case to the trial court.[48] However, once the trial court makes its findings, the parties may appeal those findings back up to the North Carolina Supreme Court. Whether the Court takes this as an opportunity to reevaluate the decision reached in NC NAACP v. Moore or limits itself to reviewing the circumstances surrounding the two amendments under review will shed light on the Court’s willingness to overturn recent precedent.
Conclusion
In 2022, the North Carolina Supreme Court issued several decisions that collectively made a strong statement about the role of the court, the democratic principles embodied by the state’s constitution, and the constitutional rights of North Carolinians. The Court rejected extreme partisan gerrymandering and reaffirmed the judiciary’s authority to provide remedies for unconstitutional legislative action.
The 2022 election, however, has ushered in a new era for the Court. Barring unforeseen circumstances, for the next six years, Republican justices will hold the majority on the bench. The three Republican justices who sat on the Court in 2022 made clear in their dissents that they disagreed with the conclusions their Democratic colleagues reached in the cases discussed above. Not only will the new majority likely have opportunities to review the precedents established this past year, but some of those very cases may well find their way back to the Court in 2023.
[1] N.C. Const. art. IV, § 16.
[2] Dallas Woodhouse, New state Supreme Court justices take oaths, flip control to Republicans, The Carolina Journal (Jan. 1, 2023).
[3] In 2027, Chief Justice Paul Martin Newby (R) and Justice Michael R. Morgan (D) will face mandatory retirement after turning 72. N.C. Gen. Stat. § 7A-4.20. The vacancies created by their retirements are filled by the governor, N.C. Gen. Stat. § 163-9, so the political composition of the bench going into the 2028 elections will depend on who wins the 2024 gubernatorial election. The temporary appointee filling the vacancy created by Chief Justice Newby’s retirement will have to stand for election in November 2027 to retain their position on the bench, but the one who will fill Justice Morgan’s seat will likely not need to stand for election until 2028. N.C. Gen. Stat. § 163-9 (“An appointee to the office of Justice of the Supreme Court or judge of the Court of Appeals shall hold office until January 1 next following the election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held for an eight-year term and until a successor is elected and qualified.”). An additional two Republican justices have terms expiring in 2028. Should Democrats take any three of these four seats, they would once again flip the composition of the Court.
[4] Hoke County Board of Education v. State, 879 S.E.2d 193, 249 (N.C. 2022).
[5] Id. at 198 (“Today, that deference expires. If this Court is to fulfill its own constitutional obligations, it can no longer patiently wait for the day, year, or decade when the State gets around to acting on its constitutional duty . . . . Further deference on our part would constitute complicity in the violation, which this Court cannot accept.”).
[6] Rucho v. Common Cause, 139 S.Ct. 2484 (2019).
[7] Stephanie Akin, Butterfield retirement video blasts ‘racially gerrymandered’ NC map, Roll Call (Nov. 18, 2021); Zack Beauchamp, North Carolina’s extreme new gerrymander, explained, Vice (Nov. 9, 2021); David Richman, N.C. facing allegations of partisan gerrymandering in new maps, The Daily Tar Heel (Nov. 16, 2021).
[8] Harper v. Hall, 868 S.E.2d 499 (N.C. 2022); Harper v. Hall, 881 S.E.2d 156 (N.C. 2022).
[9] Harper, 868 S.E.2d at 559.
[10] N.C. Const. art. I, § 10.
[11] Harper, 868 S.E.2d at 559.
[12] Id. at 542.
[13] Harper, 881 S.E.2d at 161.
[14] Id. at 182 (Newby, C.J., dissenting).
[15] Id. at 206 (Newby, C.J., dissenting).
[16] Covington v. North Carolina, 270 F.Supp.3d 881, 896 (M.D. N.C. 2017); see also North Carolina v. Covington, 138 S.Ct. 2548 (2018).
[17] NC NAACP v. Moore, 876 S.E.2d 513 (N.C. 2022)
[18] Id. at 527.
[19] Id. at 534.
[20] Id. at 535.
[21] Id.
[22] Id. at 539.
[23] Id.
[24] Id.
[25] Id. at 544 (Berger, J., dissenting). In the alternative, the dissent would also have held the referred amendments constitutional under the de facto officer doctrine.
[26] Holmes v. Moore, 881 S.E.2d 486 (N.C. 2022).
[27] Id. at 489.
[28] Id. at 518 (Berger, J., dissenting).
[29] Leandro v. North Carolina, 488 S.E.2d 249, 254 (N.C. 1997).
[30] Hoke County Board of Education v. State, 599 S.E.2d 365 (N.C. 2004).
[31] Hoke County Board of Education v. North Carolina, 879 S.E.2d at 198.
[32] The Comprehensive Remedial Plan was developed to ensure sustained constitutional compliance. Based on recommendations made by a non-partisan education research group, the Comprehensive Remedial Plan outlines the actions that would need to be taken and the funding necessary to remedy the ongoing violation of students’ constitutional rights. Id. at 211-13.
[33] Id. at 245.
[34] Id. at 284 (Berger, J., dissenting).
[35] Cooper v. Berger, No. 20 CVS 09542 (2020) (“Berger III”).
[36] Complaint, Cooper v. Berger, No. 20 CVS 09542 (Aug. 27, 2020).
[37] Victor Skinner, North Carolina’s Cooper withdraws lawsuit against state’s Rules Review Commission, The Center Square (Oct. 31, 2022).
[38] In Berger III, the Governor was challenging an appointments procedure, N.C. Gen. Stat. § 143B-30.1(a), that allowed the state legislature to appoint every member of the Rules Review Commission (RRC). The RRC may, and has, rejected rules promulgated by administrative agencies on both procedural and substantive grounds. N.C.G.S. §§ 150B-21.1, 150B-21.8. In effect, although all members are legislatively appointed, the RRC acts within the framework of the executive branch. In McCrory v. Berger, the North Carolina Supreme Court held that the governor must be able to appoint a majority of the members of bodies performing executive functions. 781 S.E.2d 248 (N.C. 2016). Based on the body of precedent, it would have been likely that the trial court and the 2022 North Carolina Supreme Court would rule in favor of Governor Cooper in Berger III.
[39] Notice of Voluntary Dismissal Without Prejudice, Planned Parenthood South Atlantic v. Moore, No. 20 CVS 500147 (Dec. 12, 2022).
[40] Complaint, Planned Parenthood South Atlantic v. Moore, No. 20 CVS 500147 (Sept. 3, 2020).
[41] See, e.g., State v. Kelliher, 873 S.E.2d 366, 383 (N.C. 2022) (“[W]e have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel provision”) (quoting State v. Carter, 370 S.E.2d 553 (N.C. 1988); State v. Brunson, 393 S.E.2d 860 (N.C. 1990) (“A state is free, however, to establish laws, rules, or procedures which preserve a defendant’s fifth amendment rights and provide even greater protection than the federal Constitution mandates.”); State v. Arrington, 319 S.E.2d 254, 260 (N.C. 1984) (“In construing provisions of the Constitution of North Carolina, this Court is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States.”).
[42] Legislative leaders ask NC Supreme Court to rehear redistricting case, The Carolina Journal (Jan. 20, 2023).
[43] Lynn Bonner, GOP election gains in North Carolina make for a more conservative legislature with a long agenda, NC Policy Watch (Jan. 10, 2023).
[44] Redistricting maps are not subject to gubernatorial veto. N.C. Const. art. II, § 22(5).
[45] No. 331PA21. The plaintiffs had moved to schedule the case for oral arguments in October or November of 2022, but the Court declined to expedite review and instead ordered the case to be heard at the first regularly scheduled session in 2023. Order, Community Success Initiative v. Moore, No. 331AO21 (N.C. Oct. 6, 2022).
[46] N.C. Gen. Stat. § 13-1.
[47] Final Judgement and Order, Community Success Initiative v. Moore, No. 19 CVS 15941 (N.C. Sup. Ct. Mar. 28, 2022).
[48] Victor Skinner, North Carolina Supreme Court won’t speed up proceedings in two constitutional amendment cases, The Center Square (Nov. 18, 2022).