A Harper v. Moore loss will not rein in the NC Legislature



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The North Carolina Supreme Court is set to hear the case on August 29, 2022 in Raleigh. From left are judges Phil Berger Jr., Michael Morgan, Robin Hudson, Paul Newby, Sam Ervin IV, Anita Earls and Tamara Behringer.


Those who care about democracy were relieved last week when a majority of the justices on the U.S. Supreme Court looked skeptical during oral arguments in a case seeking to end state judicial oversight of federal elections.

The court could still overturn two centuries of settled law and rule in favor of the sweeping changes North Carolina’s Republican lawmakers are seeking in Moore v. Harper. But encouragingly, most of the justices seem to see the disaster that would ensue if state lawmakers were allowed to shape electoral districts, voting laws, and possibly election results the way they want.

By rejecting the fringe “independent state legislature theory” in Moore v. Harper, the court would do what Democratic Gov. Roy Cooper has called for. New York Times Edition ahead of oral arguments: Don’t let North Carolina’s madness spread to the other 49 states.

But the prospect that other states may be spared is cold comfort to North Carolina. The crazies are still here and it’s only going to get worse.

A measure of how much worse can be found in a state case that prompted Republican leaders of the legislature to petition the U.S. Supreme Court for exclusive control over federal elections. In February, the state Supreme Court, with a 4-3 Democratic majority, recognized the Harper v. Hall that the Republican congressional district map was illegally forged.

The majority opinion, written by Judge Robin Hudson, said the map violated the North Carolina Constitution’s guarantee of free elections. She sharply rejected Republicans’ contention that the court has no authority to rule on redistricting because that is a purely legislative function.

Hudson wrote: “When the people of North Carolina claim that the actions of their government violate … fundamental rights, and especially when those actions suppress the democratic processes that channel political power from the people to their representatives, it is the solemn duty of this Court to review those actions. acts to ensure the guarantees of our constitution”.

But Hudson is leaving the court, and Republicans picked up two seats in November. The court, which will be sworn in in January, will have a 5-2 Republican majority. Not only would the newly created court be reluctant to resist actions by the Republican-led Legislature, it could also overturn the current court’s work on redistricting and school funding.

The anticipation of what’s to come comes from Chief Justice Paul Newby’s dissent in Harper v. Hall, joined by fellow Republicans Phil Berger Jr. and Tamara Boehringer. The presiding judge wrote: “This court is simply not constitutionally empowered or equipped to make policies or standards on matters that are political rather than legal in nature.”

Newby added: “Furthermore, this Court has long recognized that duties imposed on the Legislature are not subject to review by this Court because they raise political questions.”

Newby concluded by strongly rejecting the majority’s view that partisan gerrymandering violates the constitutional rights of citizens. He wrote: “In sum, none of the constitutional provisions relied upon by plaintiffs prohibits the practice of partisan fraud.”

A power grab by North Carolina’s Republican lawmakers is likely to be struck down by the U.S. Supreme Court, but the new North Carolina Supreme Court is apparently willing to let lawmakers get their way. One of the first steps is likely to be a review of the state Supreme Court’s recent ruling that the Legislature must provide more funding to public schools under the Leandro settlement. Another would be the approval of a new 2024 congressional redistricting map drawn up by Republicans that could effectively eliminate as many as four of seven active members of the House of Representatives of the Democratic Party.

Democrats will challenge such moves, but their protests will be taken to a court that is likely to agree with the chief justice that “legislative responsibilities” such as school funding and fair districting are “not reviewable.”

Associate Opinion Editor Ned Barnett can be reached at 919-829-4512 or at nbarnett@news observer.com

A Harper v. Moore loss will not rein in the NC Legislature

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