North Carolina Supreme Court Reverses Itself In Two Election Law Cases Decided Months Prior

In December 2022, the North Carolina Supreme Court issued opinions in two cases—one striking down the state’s voter ID law and the other overturning the latest maps drawn by the state legislature.[1] Following a change in the partisan makeup of the court, the North Carolina Supreme Court agreed to rehear both cases in February 2023.[2] On April 28, 2023, the North Carolina Supreme Court released new opinions in both cases. In Holmes v. Moore (Holmes II), the court reversed its previous decision striking down North Carolina’s voter ID statute. And, in Harper v. Hall (Harper III), the court, in its third review of the Moore v. Harper redistricting saga, overruled its January 2022 decision in Harper I and found there is no partisan gerrymandering claim under the state’s constitution. In both cases, the North Carolina Supreme Court reversed itself on two decisions it had issued only four months earlier. And in both cases, the rationale for this reversal was rooted in separation of powers.

North Carolina Supreme Court Upholds State Voter ID Law

The Holmes I plaintiffs challenged a North Carolina statute requiring all voters to present identification before casting their vote as a violation of Article I, Section 19 of the state constitution (the state Equal Protection Clause), and the court agreed that the statute was enacted with an unconstitutional racially discriminatory intent.[3] In reversing this decision in Holmes II, the court began by highlighting the strong presumption of validity that attaches to all state legislative enactments, explaining that “[a]n act of the people’s elected representatives is [] an act of the people and is presumed valid unless it conflicts with the [North Carolina] Constitution.”[4] Consequently, the majority announced, it “will not declare a law invalid unless [it] determine[s] that it is unconstitutional beyond a reasonable doubt.”[5] “Mere speculation” is not enough; instead, “[a]n individual challenging the facial constitutionality of a legislative act”—as the Holmes plaintiffs did—“must establish that no set of circumstances exists under which the act would be valid.”[6]

The Holmes II majority determined that the plaintiffs failed to make the showing required under the traditional North Carolina test for unconstitutional racial discrimination, which requires proof beyond a reasonable doubt that “(1) the law was enacted with discriminatory intent on the part of the legislature, and (2) the law actually produces a meaningful disparate impact along racial lines.”[7] In doing so, the court explicitly rejected the federal Arlington Heights factors as the best way to analyze claims of unconstitutional racial discrimination. The court explained that “Arlington Heights’ analytical framework is incompatible with our state Constitution . . . as it allows challengers to succeed on such claims by proffering evidence that is by its very nature speculative, subjective, and thus, insufficient to meet the well-established burden of proof.”[8]

Employing North Carolina’s approach to such claims, the Holmes II court determined that the evidence in the record was “wholly insufficient to prove beyond a reasonable doubt” that the 2018 voter ID law either was “enacted with discriminatory intent” or “produces a meaningful disparate impact.”[9] The Holmes II court explained that while “reasonable minds may differ as to whether the legislature endeavored to pass the least restrictive voter identification law possible,” that “does not equate to a showing that the legislature endeavored to pass a voter identification law designed to disparately impact black North Carolinians.”[10] Indeed, the Holmes I court had misconstrued the applicable burden of proof, because “Plaintiffs’ burden is not to demonstrate beyond a reasonable doubt that a hypothetical alternative law may have been less restrictive; it is to demonstrate beyond a reasonable doubt that this law was designed to discriminate on the basis of race.”[11]

The Holmes II court objected in particular to the Holmes I court’s focus on the legislature’s failure to consider racial data in crafting the challenged statute. This objection placed the legislature “in a ‘damned if you do, damned if you don’t’ conundrum in which, had it used racial data, it would run afoul of the prior admonition” of a federal circuit court decision to avoid such use, “and by not using such data, it could never satisfy the trial court’s application of the Arlington Heights test.”[12] Applying the Holmes I court’s standard, in other words, left “no option available to the legislature that could lead to implementation of a voter identification measure.”[13] And yet, such a measure had to be enacted because North Carolinians had recently passed a constitutional amendment which “created a positive duty for the General Assembly to pass a voter identification law.”[14] Ultimately, the Holmes II court determined that a higher burden of proof was warranted, and the plaintiffs could not overcome it.

The dissenting opinion in Holmes II, authored by Justice Michael Morgan, charged the majority with improper motivations and willful blindness. Speaking to their motivation, the dissent writes that “the five justices which constitute the majority here have emboldened themselves to infuse partisan politics brazenly into the outcome of the present case.”[15] According to the dissent, the fact that the petition for rehearing was granted “mere weeks after this newly minted majority was positioned on this Court and mere months after this case was already decided by a previous composition of members of this Court, spoke volumes” on the question of motivation.[16] Moreover, Justice Morgan argued, “[c]ourts are not obliged to turn a blind eye to the historical circumstances that might inform present-day efforts to encumber, restrict, or otherwise discourage the exercise of the precious right to vote.”[17] While recognizing that legislatures are entitled to a presumption of good faith, the dissent argued that “it remains the case that historical discrimination is a relevant factor in ascertaining the existence of present discriminatory intent.”[18] The dissent argued, ultimately, that the majority “spurns federal caselaw precedent” and “upend[s] decades of state constitutional principles” in a “quest to shield acts of the state legislature from scrutiny for invidious discriminatory intent.”[19]

North Carolina Supreme Court Finds No Justiciable Partisan Gerrymandering Claim Under The State Constitution

The court’s decision in Harper III rests on a similar separation of powers rationale. Explaining at the outset that its power of judicial review “is not unlimited,” the majority highlighted the same presumption of legislative good faith relied upon in Holmes II—namely, that “any challenge alleging that an act of the General Assembly is unconstitutional must identify an express provision of the constitution and demonstrate that the General Assembly violated the provision beyond a reasonable doubt.”[20] The Harper III majority accused the Harper I court of crafting “a standard that only four justices know and understand, that is riddled with policy choices, and that is not mentioned in our constitution.”[21]

The Harper I court’s standard for assessing the constitutionality of alleged partisan gerrymanders was, in the opinion of the Harper III majority, unworkable. The Harper I majority “provided no guidance regarding what sorts of concrete evidence might assist future trial courts in this endeavor, nor did the majority explain how to recognize and weigh it.”[22] Further, after touting the relevance of various statistical measures for assessing partisan gerrymandering in Harper I (which the legislature then relied on to craft its new maps), the same majority in Harper II later claimed that “[c]onstitutional compliance is not grounded in narrow statistical measures.”[23] To correct the previous majority’s error, the Harper III court reversed the earlier decision and held that “partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.”[24]

In removing the courts from exercising any authority over claims of partisan gerrymandering, the Harper III majority focused its analysis on a textual reading of the North Carolina Constitution and imported elements of the federal political question doctrine. First, the court determined that the text of the state constitution commits redistricting power to the legislative branch: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[25] However, the majority also explained that, contrary to fears of a fully independent legislature, the state constitution “does not leave the General Assembly completely unrestrained,” but “expressly requires that any redistricting plan conform to its explicit criteria.”[26]

Next, the majority determined there was no judicially discoverable and manageable standard for assessing the constitutionality of an alleged partisan gerrymander under the North Carolina Constitution. Although the state’s constitution “could contain a provision that expressly prohibits or limits partisan gerrymandering,” it does not; therefore, North Carolina courts are not “‘armed with a standard that can reliably differentiate’ between constitutional and unconstitutional partisan gerrymandering.”[27] Even the Harper I majority was unable to “consistently enunciate” a supposed constitutional standard.[28] In short, “constitutional compliance should not be so difficult.”[29]

Instead, the majority reasoned, the court’s earlier decisions were predicated on the kind of policy determinations that are clearly suited for legislative discretion. This flaw was present in the chain of reasoning from the very start of the case: “since the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”[30] Tellingly, however, “the majority was unable to articulate how much partisan gerrymandering is too much.”[31] Moreover, the Harper I majority continued to make policy to effectuate its initial policy choice: “[t]he decision to use certain political science tests, which tests to use, which scores are required, and which past election results are most predictive of future electoral behavior involve policy choices that are untethered to the law.”[32] All of these choices were geared towards achieving a particular end—guaranteeing roughly proportional levels of political representation for various groups—but in the view of the Harper III court, “[t]he constitution cannot guarantee that a representative will have identical political objectives to a given constituent because that is an impossible requirement.”[33]

Writing in dissent, Justice Anita Earls, joined by Justice Morgan, accused the majority of harboring partisan motivations. According to the dissent, the majority’s “result was preordained on 8 November 2022, when two new members of this court were elected to establish this court’s conservative majority.”[34] After that point, the dissent charged, nothing else mattered, not “the parties’ briefing after rehearing,” “oral argument,” or the “merits of Plaintiffs’ arguments,” only the “majority’s own political agenda.”[35]

The dissent argued that the majority opinion strips people of the “fundamental right to vote on equal terms,” thereby “tell[ing] North Carolinians that the state constitution and the courts cannot protect their basic human right to self-governance and self-determination.”[36] Even more than the majority’s constitutional analysis, the dissent took issue with what it saw as the majority’s failure to reckon with the evils of partisan gerrymandering, explaining that “the majority ignores the uncontested truths about the intentions behind partisan gerrymandering and erects an unconvincing façade that only parrots democratic values in an attempt to defend its decision.”[37]

Conclusion

In these cases, the court afforded a strong presumption of validity to duly enacted legislation. In Holmes II, the court emphasized the legislature’s role as the representative voice of the people. Similarly, underlying the Harper III majority opinion was a recognition that courts are ill-equipped to make policy determinations. In both cases, the court demanded a clear indication of express constitutional infirmity before it would be willing to entertain any invitation to upset the legislature’s actions. The Harper III court explained that this is not an abdication of the judiciary’s role, but an indication that judicial review is limited.[38] As state and federal courts continue to grapple with constitutional challenges to state laws—especially laws that touch on the voting process—judges, legislators, and litigants should become familiar with these separation of powers principles and understand the impact they will have on resolving these disputes.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].