The Week Ahead
March 12, 2023
This week, I’m off on spring break. My husband and I are taking a long-awaited trip to Sweden. We were supposed to go in 2020, but our flight was scheduled for 10 days after the world shut down for Covid. Needless to say, we didn’t make it. We’re here now, just arrived. So far, it’s beautiful and the people are lovely. So is the food.
We’re hoping that our adult kids, who are minding the house and the family pets, will remember to bring in all of the chicken eggs this time, unlike last summer, when we ended up with baby chicks and this goofy guy. (I hope he won’t miss me too much!)
While I won’t be writing as much this week, I want to make sure we stay up to speed on some key issues. And of course, I’ll jump in if we have indictments of any former presidents or any other interesting developments.
For the week ahead, our focus on voting rights litigation will continue when the North Carolina Supreme Court, which flipped from majority Democratic to majority Republican in the midterm elections last fall, rehears two cases, the gerrymandering case Harper v. Hall and another case where the court disallowed a highly restrictive photo ID law, Holmes v. Moore, on Tuesday. There has been no change in the law or the facts surrounding these two cases; the change—the basis for the highly unusual step of rehearing the two cases after they’ve already been decided—appears to be the new ideological composition of the North Carolina Supreme Court.
Our legal system values finality. If cases were always open to being re-decided, who could have confidence in the final decisions made in the highest appellate courts? One might as well not have courts. So there are strict rules that set very limited circumstances in which a final decision can be reconsidered.
The North Carolina Supreme Court dressed up its decision to rehear the gerrymandering case in the language of North Carolina rules that permit a case to be reheard when there have been serious errors of law. But the excuse is a thin veneer, weakly adhered to the partisanship that lies beneath it. As a Democratic justice who was in the original majority wrote in her dissent to the decision to rehear the case, “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” Cases should be decided based upon the law, not the personalities of the judges who sit on the court. The new conservative majority on the North Carolina court, apparently heady with its victory, has forgotten the cautionary tale presented by the U.S. Supreme Court: when courts abandon precedent and re-decide legal issues based on thinly concealed ideological views, public confidence in the courts is the loser.
In June 2022, just ahead of the U.S. Supreme Court’s decision to reverse Roe v. Wade and take away abortion rights from American women, a Gallup poll showed that only 25% of U.S. adults had “a great deal” or “quite a lot” of confidence in the U.S. Supreme Court. That was down from 36% the year before. It was five percentage points lower than a previous dip in confidence in the Court in 2014. Contemplating having a court, whether it is the U.S. Supreme Court or the North Carolina Court, decide a case that determines the outcome of an election—a very likely prospect in 2024—when confidence in that court is at rock bottom, is a disturbing prospect. Judges and justices alike would do well to consider the role they are called to play in the separation of powers and the integrity of our institutions.
The U.S. Supreme Court case that is related to the North Carolina case bears the slightly different name, Moore v. Harper, and is still pending before the U.S. Supreme Court. It’s a case we discussed when it was argued in December 2022 because, at the time, it appeared to have the most far-reaching implications of any case before the Court this term. The appeal asks SCOTUS to consider the validity of the independent state legislature theory, which, if the conservative members of the Supreme Court were to go all in on it, would endorse North Carolina’s claim that the U.S. Constitution gives state legislatures the ultimate power to determine how federal elections are run, with no oversight from state constitutions or state courts.
As applied here, the independent state legislature theory would permit, for instance, legislatures to sign off on heavily gerrymandered voting districts with no possibility that other branches of state government could exercise checks and balances. With the gutting of the Voting Rights Act, it’s increasingly difficult to challenge a gerrymander on racial grounds and the Supreme Court has already ruled out federal challenges to purely “political” gerrymanders. So, state legislatures would become the ultimate arbiters of federal elections if SCOTUS endorsed the independent state legislature theory. North Carolina Republican state lawmakers used the theory, which was considered to be very fringe until just recently, to justify arguing before the U.S. Supreme Court that the North Carolina Supreme Court (when it, coincidentally, had a Democratic majority) exceeded its authority when it held that the state’s new congressional and state legislative maps were unlawfully gerrymandered. That’s the approach North Carolina asked SCOTUS to adopt in the oral argument in December.
But there is a spillover impact from the North Carolina Court’s decision to rehear the case. SCOTUS has given the parties in the pending case until 2 p.m. on Monday, March 20, to file letter briefs advising the Court on how the state rehearing impacts the federal case. Letter briefs are shorter and less formal than regular briefings, and instead of adopting the typical extended briefing schedule, both sides’ briefs are due at the same time on Monday. The Court is asking the parties to help it determine whether it still has the authority to decide the case, since it only hears state cases after a final decision in the lower courts, with very limited exceptions. Since the North Carolina court has granted rehearing, the decisions are no longer final. That would give SCOTUS a nice off-ramp if it wants to duck deciding the issue.
We don’t know how quickly either court will rule. We may get some hint of where the North Carolina Supreme Court is headed in oral argument on Monday. And since SCOTUS expedited the letter briefing issue, it could be primed to decide quickly. Either way, any decision that breathes unwarranted life into the specious independent state legislature theory is a danger to our right to vote in the face of conservative legislative majorities that want to make sure state courts can’t step in to preserve the integrity of their elections, as they did after the 2020 election.
We’re in this together,