NC Speaker Moore takes 2 strikes at NC Supreme Court: Reconsider redistricting, voter ID

20 January 2023

RALEIGH, N.C. (WGHP) – North Carolina House Speaker Tim Moore (R-Cleveland) isn’t waiting to see if his colleagues in the General Assembly can develop, pass and avoid a veto to address voter ID laws and redistricting maps that the courts had rejected last year.

Moore on Friday filed documents with the Supreme Court asking for a rehearing on both matters because of what he says are errors and “judicial activism” that led the court to rule against the legislators’ work on both issues.

North Carolina House Speaker Tim Moore (R-Cleveland, left) and Senate Leader Phil Berger (R-Rockingham). (AP File Photo/Gary D. Robertson)

He also refers to a big reason for his filing: The Supreme Court was swung in November from a 4-3 Democratic majority to a 5-2 Republican control. Both decisions the court announced in December were along that Democratic majority.

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The state Supreme Court on Dec. 16 struck down the constitutional amendment voters passed in 2018 to require a photo identification be shown before voting and upheld its earlier judgment that political districts can’t be gerrymandered to maintain political power.

Sen. Leader Phil Berger (R-Eden) and Moore had been expected to act on both matters, but Moore’s filings preclude the very real possibility of legislative bogs and the almost certainty that Gov. Roy Cooper would veto voter ID (he can’t veto legislative maps).

“The people of North Carolina sent a message on election day. They clearly rejected the judicial activism of the outgoing majority,” Moore said in his filings. “I am committed to fighting for the rule of law and the will of the voters.

“It’s time for voter ID to be law, as the people of North Carolina have demanded.”

Republicans Richard Dietz and Trey Allen were voted onto the Supreme Court, replacing retiring Justice Robin Hudson and defeating incumbent Sam Ervin IV, a fact that had Republicans complaining about the “lame-duck court” deciding those two issues at the end of the year.

In both filings Friday, the plaintiffs suggest the court can reopen a civil action “if it has ‘overlooked or misapprehended’ any ‘points of fact or law.’” Their petitions argue error as well as inconsistency.

Politics and gerrymandering

The gerrymandering case, brought by defendant Rebecca Harper as a representative of the North Carolina League of Conservation Voters, Common Cause and a group of individuals, against Destin Hall, chair of the House Standing Committee on Redistricting; and Sen. Warren Daniel, Ralph Hise and Paul Newton, co-chairs of the Senate’s standing committee, closed the loop on the series of hearings that led to the electoral districts used in the 2022 elections for Congress and the General Assembly.

Those maps were ordered redrawn after the NC Supreme Court found them to be illegal political gerrymandering. Ultimately the state court’s finding was left in place by the U.S. Supreme Court.

Hudson in December denied an appeal by the defendants and suggested they only wanted to avoid affecting arguments in the ongoing Moore v. Harper case about legislative authority that has been heard by the U.S. Supreme Court. That case would remove the state courts as an arbiter in federal elections.

She also wrote that “in accordance with article II section 5 of our Constitution, the RHP is now ‘established’ under the law and therefore ‘shall remain unaltered until the return of another decennial census of population taken by order of Congress.’” That would be in 2030.

The petition filed Friday by redistricting attorney Phillip J. Strach of Nelson Mullins Riley & Scarborough in Raleigh states that “only the four members of the Harper II majority can or will know a gerrymander when they see it; everyone else must wait for their Delphic pronouncement. The Harper experiment has failed, and it is time for this Court to recognize that, correct its errors, and return to the Constitution and this State’s traditional modes of interpretation.”

The court, the filing says, “effectively overturned its own decision” and the petition calls the court’s work unmanageable and unconstitutional and says its promised “equal opportunity” for both parties in redistricting is not possible because of geography. It also says the court rejected claims that prior NC Supreme Court rulings had affirmed.

Plaintiffs also want the court to “direct the General Assembly to fulfill its Constitutional redistricting obligation without unfounded judicial interference.” That could mean: Settle this forever.

The bottom line, the filing states, is that politics in redistricting do not violate the state’s Constitution, as the court had ruled broadly, and violates the U.S. Constitution’s Elections Clause.

It also tells the state justices that they should “consider the impact and timing of Moore in any decision it renders in this case.”

Congressional maps with incumbents

NC Senate map

NC House map
The electoral maps the NC Supreme Court approved and reaffirmed in December.

Voter ID ‘legal error’

NC Supreme Court Associate Justice Anita Earls

In Holmes v. Moore, the voter ID case, Associate Justice Anita Earls wrote for the majority that the bill that authorized the vote on the constitutional amendment for voter ID “was passed with the discriminatory intent to target African-American voters.”

The voter ID law sought to require picture IDs for voters and replaced a law passed earlier by the General Assembly but ruled unconstitutional in federal court. 

The bill originally was vetoed by Gov. Roy Cooper, but the GOP supermajority in the General Assembly overrode that veto. After numerous legal appeals, voters ultimately approved the bill with 55.49% of about 3.7 million votes cast.

But because of the GOP’s supermajority, Wake County Superior Court Judge G. Bryan Collins Jr. had agreed with the NAACP that the legislature couldn’t take action to establish the amendment because the courts had found its makeup to be illegal along racial lines. His ruling had been overturned by the state Court of Appeals.

The Supreme Court’s opinion, in upholding the trial court’s finding on review, says the General Assembly did not act with proper consideration process and that Senate Bill 824 “violates Article I, section 19 of the North Carolina Constitution because the law was enacted with discriminatory intent.”

But the filing Friday by attorney Nicole J. Moss of Cooper & Kirk, PLCC in Washington, D.C., argues that Earls’ assertion about SB 824 is “without foundation of competent evidence and constructed with legal error” and that, “most egregiously, the majority repeated the mistake of the trial court by failing to accord the General Assembly the presumption of good faith.”

The petition said the court’s ruling would make it “all but impossible for it to enact a photo voter ID law that would pass constitutional muster.”

It suggests there is no proof that lawmakers intended to discriminate with SB 824 and that there was “no credible evidence of disparate impact.

“There is no evidence anywhere in the record that any voter of any race will be denied the opportunity to vote because of the enactment of SB 824,” the petition says.

The filing cites the dissent written in December by Associate Justice Phil Berger Jr., who is the son of Senate Leader Phil Berger, which said the Fourth Circuit Court had found no “discriminatory intent” and that “legal error infected the entirety of the trial court’s decision.”

“The plain language of S.B. 824 shows no intent to discriminate against any group or individual, and there is no evidence that S.B. 824 was passed with race in mind, let alone a racially discriminatory intent,” Berger Jr. wrote.

Friday’s petition says that the trial court erred both in using history to find discriminatory intent and also “to impose a presumption of discrimination that defendants were required to dispel.”

‘A predetermined outcome’

The original bill that authorized the voter ID law to be placed on the ballot was vague in details about how it would work, and it was the NC Supreme Court had taken issue with the “lame duck” session and how it drafted the language used to enact that law.

The filing Friday argues that lawmakers had a constitutional mandate to respond to the vote on the amendment and pass a law to enact it, which in itself dispels the issue of “discriminatory intent.”

Sam Hayes, Moore’s general counsel, said in a released statement that “Holmes was wrongly decided based on a predetermined outcome. We now have a chance to right this wrong and deliver on voter ID, which the voters of this state overwhelmingly support.”

Allison Riggs, an attorney for some of the liberal challengers seeking to have North Carolina’s new political maps ruled unconstitutional, questions a witness during a trial last month. Riggs now is a judge on the NC Court of Appeals. (Travis Long/The News & Observer via AP)

No immediate reaction

There was no immediate reaction from attorneys involved for the plaintiffs in either of the cases. The NC Democratic Party did not respond immediately to a request for content.

Allison Riggs, one of the principal attorneys in Harper and other voting rights cases. in December was appointed by Cooper to fill an opening on the NC Court of Appeals that was created when Dietz moved up.

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