[This post has been updated]

In a 5-2 decision along partisan lines, the North Carolina Supreme Court held that it cannot consider partisan gerrymandering claims under the state constitution. This ruling overturns an earlier ruling of the state supreme court, when that court granted a rare rehearing after Republican justices took control of the court after the most recent elections.

This case potentially moots the U.S. Supreme Court’s consideration of Moore v. Harper, an earlier stage of this same case that struck down North Carolina’s congressional districting (and other districting) as a violation of the state Constitution. The U.S. case concerns the so-called “independent state legislature” theory, and it presents a major question about the scope of the power of state courts and state election administrators to administer federal elections. [My amicus brief on the U.S. case is here.] There are some tricky questions, about which the U.S. Supreme Court ordered more briefing, about whether a ruling by the North Carolina Supreme Court would prevent the U.S. Supreme Court from deciding the independent state legislature issue.

But the fact that the state Supreme Court declares that “Accordingly, the decision of this Court in Harper I is overruled”, it is hard to see how the U.S. Supreme Court continues to review Harper 1.

If the U.S. Supreme Court now dismisses Moore v. Harper as improvidently granted, I think there’s a decent chance it grants review in an Ohio case raising similar issues, Huffman v. Neiman. It is crucially important that the Supreme Court resolve the scope (if any) of the independent state legislature theory in a case before the 2024 elections. It would be terrible for the country for the U.S. presidential election to turn on this issue without earlier guidance from the Court on the theory’s scope.

You can find today’s North Carolina Supreme Court 5-2 decision at this link.

As a political matter, this will allow the NC general assembly to engage in the most partisan gerrymander of congressional seats it can think of. In that state, the governor has no approval or veto over the maps. The NC court in its ruling today says that the general assembly has to start over in drawing district maps, because the maps drawn in 2021 and 2022 were drawn without full consideration of partisan data that should be available to legislators.

From the dissent of Justice Earls (who had written the now-overruled partisan gerrymandering standard):

In Harper I, this Court ensured that all North Carolinians, regardless of political party, were not denied their “fundamental right to vote on equal terms.” Harper I, 380 N.C. at 378 (cleaned up). 

Today, the majority strips the people of this right; it tells North Carolinians that the state constitution and the courts cannot protect their basic human right to self-governance and self-determination. In so doing, 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. Despite its lofty prose about the need for principled adherence to the state constitution, the majority follows none of these principles today. Nor does the majority even pay passing reference to the anti-democratic nature of extreme partisan gerrymandering. These efforts to downplay the practice do not erase its consequences and the public will not be gaslighted. Our constitution provides that “[a]ll political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only.” N.C. Const. art. I, § 2. But when Republican lawmakers are free to gerrymander redistricting plans without constitutional guardrails to ensure their party’s indefinite political domination, this constitutional requirement is abandoned. 

(my emphasis)

The court also reversed a finding on the state’s voter id law, now holding (contrary to the earlier holding, before Republican justices took a majority of the court) that the state’s law does not violate the state Constitution.

The voter id decision is at this link.