2022
North Carolina Supreme Court Invalidates Redistricting Map and Voter ID Law Enacted By Legislature
State courts often play an important role in reviewing and interpreting state laws that govern the manner in which states conduct their elections. In a recent example, on December 16, 2022, the North Carolina Supreme Court decided a pair of key election-related cases by identical 4 to 3 margins that concern both the procedure through which elections are conducted in the state and the composition of the state legislature for at least the next decade. In Holmes v. Moore, the North Carolina Supreme Court affirmed the findings of a divided three-judge panel that a statute requiring all North Carolina voters to present photo identification at the polls was enacted with an impermissible racially discriminatory intent and therefore violated the Equal Protection Clause of the North Carolina Constitution.[1] In a separate case, Harper v. Hall II—which stems from the same litigation over North Carolina’s 2021 redistricting plans that gave rise to the pending U.S. Supreme Court case Moore v. Harper—the North Carolina Supreme Court reversed a unanimous three-judge lower court, found that the state legislature’s remedial state senate map was unconstitutional, and remanded the case for the development of yet another remedial map.[2]
North Carolina Supreme Court Strikes Down Voter ID Law
The Holmes case arose out of a 2018 amendment to the North Carolina Constitution, which was approved by a majority of North Carolina voters in the 2018 general election and required all voters to present photo identification before voting in person.[3] Weeks after the constitutional amendment passed, the North Carolina General Assembly “reconvened in a post-election lame duck session” to enact enabling legislation to codify the photo identification requirement mandated by the new constitutional provision and specify the types of identification that would be accepted.[4] The resulting legislation, Senate Bill 824 (the “voter ID law”), was enacted over the Democratic governor’s veto in December 2018 and was immediately challenged by the Holmes plaintiffs as a violation of Article I, Section 19 of the North Carolina Constitution—the state equal protection clause.[5]
A three-judge state court panel agreed with plaintiffs that the voter ID law had been enacted with a racially discriminatory intent in violation of the state constitution’s equal protection clause and enjoined the law on September 17, 2021.[6] The lower court majority opinion found that “the Republican majority target[ed] voters who, based on race, were unlikely to vote for the majority party,” and that this intent violated the state constitution “[e]ven if done for partisan ends.”[7] The North Carolina Supreme Court granted discretionary review of the panel’s decision.
Applying a deferential standard of review that considered the lower court’s findings of fact “conclusive” so long as there was “competent evidence to support them,” the North Carolina Supreme Court affirmed the lower court’s decision that the voter ID law was “motivated by racial discrimination” in violation of the state constitution.[8] The opinion was written by Justice Anita Earls and joined by Justices Sam Ervin, Robin Hudson, and Michael Morgan. In reaching this conclusion, the court found that the panel below correctly evaluated the Arlington Heights factors, a “non-exhaustive list” that federal courts use to “analyz[e] whether a law was passed with discriminatory intent.”[9] Among those factors are whether the challenged law “bears more heavily on one race than another,” the “historical background,” “[t]he specific sequence of events leading up to the challenged decision,” including “departures from the normal procedural sequence,” and the “legislative or administrative history” of the law.[10]
The majority first noted that while U.S. Supreme Court precedent makes clear that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” such “[d]isproportionate impact is not irrelevant.”[11] But the majority explained that actual disenfranchisement of minority voters was irrelevant to the analysis. As the majority put it, whether voters “are able to overcome the barriers” a voting regulation imposes “does not change the fact that disparate impact exists, nor does it change the intent of the North Carolina General Assembly in passing the law.”[12] Here, the majority credited the evidence produced in the trial court record “that voters of color disproportionately lack the forms of ID required under” the voter ID law as “sufficient to show disparate impact,” regardless of actual voting turnout.[13]
The majority also found historical evidence relevant. Testimony from historians at the trial court identified “a recurring pattern in North Carolina in which expansion of voting rights and ballot access for African-Americans is followed by the enactment of facially neutral laws that both intend to, and have the effect of, diluting African-American votes.”[14] The trial court highlighted three instances—the late 19th century, the 1950s and 1960s, and 2013—when that pattern appeared to obtain.[15] While the majority agreed that “past discrimination cannot condemn governmental action that is not itself unlawful,” it found such data relevant “as one piece of circumstantial evidence.”[16]
The trial court also identified what it characterized as an atypical sequence of events leading to the enactment of the voter ID law as further evidence of a discriminatory purpose, and the Holmes majority agreed. Principally, the trial court and majority opinion took issue with the fact that a “Republican supermajority chose to enact S.B. 824 during a lame duck session over Governor Cooper’s veto,” and an admission from legislative defendants that “their actions were designed to keep newly elected legislators from voting on the implementing legislation to the constitutional amendment.”[17] The majority also credited evidence drawn from the voter ID law’s legislative history—namely, that the process was “rushed,” that “proposed amendments that could have benefitted African-American voters were rejected,” that the bill did not “attempt to cure the racial disparities” identified by a federal court in an earlier voter ID law, and that “there was little involvement by Democratic lawmakers”—as further indicia of a discriminatory intent.[18]
Given these findings indicating that racial discrimination was a “‘substantial’ or ‘motivating’ factor behind enactment of the law,” the majority explained that “the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor.”[19] But the majority rejected the legislative defendants’ two proffered non-discriminatory rationales: that the passage of the constitutional amendment required them to implement the voter ID requirement, and that the state’s interest in preventing voter fraud was sufficient to justify the voter ID law.[20] Discarding the legislative defendants’ argument that the constitutional amendment required a voter ID law, the majority explained that the constitutional amendment alone did not require the General Assembly to pass a voter ID law “that was disproportionately burdensome on African-American voters.”[21] Furthermore, the majority discounted the voter fraud argument, crediting evidence from the trial court that voter fraud in North Carolina is rare, with only five identified cases between 2015 and 2019, and that “there was little evidence that a voter ID law would prevent voter impersonation even if such fraudulent behavior was common.”[22] Hence, the majority affirmed the trial court’s judgment and held that the voter ID law violated the state constitution’s equal protection clause “because the law was enacted with discriminatory intent to disproportionately disenfranchise and burden African-American voters in North Carolina.”[23]
Three Republican justices dissented in an opinion drafted by Justice Philip Berger, and joined by Chief Justice Paul Newby and Justice Tamara Barringer. The dissent argued that the lower court (as well as the majority in affirming the panel’s decision) ignored recent controlling U.S. Supreme Court and Fourth Circuit precedent and therefore misapplied Arlington Heights. Citing the 2018 Supreme Court opinion Abbott v. Perez[24] for the proposition that “[p]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful,” the dissenting justices contended that the majority failed to presume the good faith of the state legislature and thereby flipped the appropriate burden of proof on its head.[25] Furthermore, the dissent pointed out that the Fourth Circuit, in its 2020 decision in N.C. State Conference of the NAACP v. Raymond,[26] failed to detect any evidence of racially discriminatory intent in the passage of the very law—S.B. 824—that was at issue in this case.[27] Instead of focusing on these apt decisions, the dissent explained, the majority affirmed an “improper analytical reliance” on another Fourth Circuit precedent, N.C. State Conference of the NAACP v. McCrory.[28] In McCrory, the Fourth Circuit considered a challenge to a separate voter ID law enacted by the North Carolina General Assembly in 2013 and concluded that law was enacted with discriminatory intent. As the dissent summarized, relying “so heavily” on McCrory, a case decided before the Supreme Court’s pronouncement of presumed good faith in Abbott and about a prior law, “while completely ignoring not only Supreme Court precedent, but also a Fourth Circuit case [Raymond] holding this very law constitutional, is error of the gravest kind.”[29]
North Carolina Supreme Court Overturns Latest Senate Redistricting Maps
On the same day that the North Carolina Supreme Court released its opinion on the state voter ID law in Holmes, the court released another opinion in Harper v. Hall II, striking down the redrawn North Carolina state senate maps. The Harper litigation began shortly after the North Carolina General Assembly adopted new redistricting plans for the state—congressional, state house, and state senate—following the release of decennial census data in the fall of 2021. In February 2022, in Harper I the North Carolina Supreme Court initially struck down all three 2021 redistricting plans adopted by the General Assembly as “unconstitutional partisan gerrymanders that failed strict scrutiny.”[30] The North Carolina Supreme Court then “gave the General Assembly the opportunity to submit remedial maps” that complied with the state constitution and “remanded the case to the trial court to oversee and assess the constitutionality of those remedial maps.”[31]
To accomplish this task, the trial court appointed three former state judges as Special Masters to assess the remedial maps’ compliance with various statistical measures identified by the supreme court majority as persuasive regarding the existence of a partisan gerrymander; the appointed Special Masters also hired four academic advisors to assist in this analysis.[32] Based upon analysis by the Special Masters and their advisors, the trial court determined that the congressional plan was “not satisfactorily within the statistical ranges set forth in the Supreme Court’s full opinion,” but that the state senate and house plans were within such ranges, and that any remaining partisan skew favoring Republicans was “explained by the political geography of North Carolina.”[33] All parties appealed from the remedial order to the state supreme court.[34]
The North Carolina Supreme Court majority agreed with the trial court that the house plan was constitutional and that the congressional plan was not, but it reversed the trial court’s order concerning the state senate plan.[35] Although the Harper II majority expounded the same standard of review as the Holmes majority—that the trial court’s findings of fact are “conclusive” so long as they are supported by “competent evidence”—it was not as deferential in Harper II.[36] While the majority in Harper II determined that the trial court’s legal conclusions with respect to the congressional and state house maps “were supported by adequate factual findings, which were in turn supported by competent evidence,” it found that the evidence concerning the state senate plan “dictates the opposite finding and conclusion.”[37]
According to the Harper II majority, the trial court’s error arose from a misunderstanding concerning the nature of the constitutional inquiry. The academic experts in the case focused exclusively on statistical metrics, noting that while the senate plan “favors Republicans in all six metrics evaluated,” the bias was not so extreme as to exceed the ranges identified by the North Carolina Supreme Court.[38] But whereas the North Carolina Supreme Court in February 2022 had identified “a few potential statistical measures that could be used by the General Assembly and reviewing courts in determining whether redistricting plans demonstrate a significant likelihood of giving the voters of all political parties substantially equal opportunity to translate votes into seats,” the same court now explained that “an individual statistical measure standing alone, though helpful, is not dispositive of constitutional compliance.”[39] Rather, such findings “constitute[] one datapoint within a broader constellation of principles that a court may consider in reaching its ultimate constitutional determination” concerning potential voting rights violations.[40]
In other words, a redistricting map’s compliance with the state constitution has not been transformed into a purely quantitative exercise but remains fundamentally qualitative even if informed by statistical metrics. In Harper II, the majority found certain non-statistical contextual factors compelling in evaluating the senate plan’s constitutionality—namely, the fact that the remedial map “kept many of the same county groupings” as the original plan invalidated by the supreme court in February, and that the remedial map “passed both chambers of the General Assembly on strictly party-line votes.”[41] The North Carolina Supreme Court also expressly questioned the trial court’s conclusion that any remaining partisan skew in the senate plan was attributable to political geography, noting that alternative plans presented to the lower court exhibit “less than half the size of the [partisan] advantage in the” remedial senate plan, which indicates that “there is nothing foreordained” about those partisan advantages.[42]
The majority noted that these contextual datapoints are not “individually dispositive,” but that “cumulatively . . . they directly and significantly undermine, rather than support, the trial court’s factual findings that the [remedial senate plan] satisfies constitutional standards.”[43] Therefore, the supreme court reversed the trial court’s approval of the remedial senate plan and remanded for the trial court to oversee the creation of a second remedial senate plan.[44]
The same three justices who dissented in Holmes dissented here as well in an opinion by Chief Justice Newby. This opinion reiterated the separation of powers concerns raised in the Harper I dissent,[45] while simultaneously criticizing members of the majority for moving goalposts that they had erected in their earlier majority opinion striking down the legislature’s original maps as unconstitutional. The dissent claimed that the majority in its initial Harper I opinion “effectively amended the state constitution to establish a redistricting commission composed of judges and political science experts.”[46] But, the dissent explained, the Harper II majority then “freely reweigh[ed] the evidence and substitute[d] its own fact-finding” when the lower court on remand utilized the majority’s approved tests but “reach[ed] an outcome with which the majority disagrees.”[47] In the view of the dissenting justices, this outcome only highlighted the dangers inherent in judicial usurpation of the legislature’s constitutional role. In this case, “all three remedial maps satisfied . . . the majority’s own test for presumptive constitutionality,” and yet the majority nevertheless determined that the remedial congressional and state senate maps remained unconstitutional.[48] The dissenting justices made clear that they think such confusion is unavoidable when courts attempt to apply standards that are fundamentally not law.
Considered together, the Holmes and Harper II opinions have undeniable similarities. There are obvious political similarities: the same four Democratic justices (North Carolina elects its supreme court justices in partisan election contests) constituted the majority in each, and in both cases the court invalidated election-related enactments of a Republican majority in the state legislature.[49] And both interpreted the North Carolina Constitution as a substantive limitation on the General Assembly’s power to enact election laws. However, the differences between the opinions are just as significant. For instance, although it applied an identical standard of review in both cases, the Holmes majority exhibited substantial deference to the trial court’s findings, while in Harper II the majority reprimanded the lower court for misunderstanding the qualitative nature of the constitutional inquiry that the North Carolina Supreme Court had attempted to articulate in its prior Harper I opinion.
As state legislatures prepare to start their 2023 legislative sessions, and potentially consider new election law changes, legislators should be mindful that the laws they pass may end up judged by their state supreme court. If a legislative enactment is challenged, these two cases serve as a timely reminder that careful legislative deliberations and the ability to create a favorable record before the trial court may be decisive in whether any legislative victory is short lived.
[1] Holmes v. Moore, No. 342PA19-2, 2022 N.C. LEXIS 1098 (Dec. 16, 2022).
[2] Harper v. Hall (“Harper II”), No. 413PA21, 2022 N.C. LEXIS 1100 (Dec. 16, 2022).
[3] Holmes, No. 342PA19-2 at ¶ 8.
[4] Id.
[5] Id.; see also N.C. Const. art. I, § 19.
[6] Holmes, No. 342PA19-2 at ¶ 12.
[7] Id. (quotations omitted).
[8] Id. at ¶¶ 4, 13 (quoting In re Estate of Skinner, 804 S.E.2d 449, 457 (N.C. 2017)).
[9] Id. at ¶¶ 4, 15 (quoting Vill. Of Arlington Heights v. Metro. Hou. Dev. Corp., 429 U.S. 252, 265–68 (1977)).
[10] Id. at ¶ 15 (quoting Vill. Of Arlington Heights, 429 U.S. at 266-68).
[11] Id. at ¶ 17 (citations omitted).
[12] Id. at ¶ 19.
[13] Id. at ¶ 17.
[14] Id. at ¶ 29.
[15] Id. at ¶¶ 30-35.
[16] Id. at ¶ 38.
[17] Id. at ¶¶ 50-52.
[18] Id. at ¶ 58.
[19] Id. at ¶ 76 (quoting Hunter v. Underwood, 471 U.S. 222, 228 (1985)).
[20] Id. at ¶ 77.
[21] Id.
[22] Id. at ¶ 78.
[23] Id. at ¶ 84.
[24] 138 S. Ct. 2305, 2324-25 (2018).
[25] Holmes, 2022-NCSC-122 at ¶ 126 (Berger, J., dissenting).
[26] 981 F.3d 295 (4th Cir. 2020).
[27] Holmes, 2022-NCSC-122 at ¶ 86 (Berger, J., dissenting).
[28] Id. at ¶ 102 (Berger, J., dissenting) (citing 831 F.3d 204 (4th Cir. 2016)).
[29] Id. at ¶¶ 106, 127 (Berger, J., dissenting).
[30] Harper II, No. 413PA21 at ¶ 2; see also Harper v. Hall (“Harper I”), 868 S.E.2d 499 (N.C. 2022). Further analysis of this case can be found here.
[31] Harper II, No. 413PA21 at ¶ 4.
[32] Id. at ¶¶ 25-26.
[33] Id. at ¶¶ 52-54.
[34] Id. at ¶ 62.
[35] Id. at ¶ 6.
[36] Id. at ¶ 68.
[37] Id. at ¶ 6.
[38] Id. at ¶¶ 41-42.
[39] Id. at ¶¶ 2-3 (cleaned up).
[40] Id. at ¶ 3.
[41] Id. at ¶ 97.
[42] Id. at ¶ 100.
[43] Id. at ¶ 101.
[44] Id. at ¶ 103.
[45] See Harper I, 868 S.E.2d at 566-78 (Newby, C.J., dissenting).
[46] Harper II, No. 413PA21 at ¶ 117 (Newby, C.J., dissenting).
[47] Id. (Newby, C.J., dissenting).
[48] Id. at ¶ 123 (Newby, C.J., dissenting).
[49] It also bears mention that the 4-3 Democratic partisan advantage on the North Carolina Supreme Court was flipped to a 5-2 Republican majority in the November 2022 general election, just weeks before the Holmes and Harper II opinions were released. On February 3, 2023, the new Republican majority agreed to rehear both of these cases.
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