The N.C. Supreme Court will decide in the weeks ahead whether the General Assembly will need to redraw state election maps again. The state’s highest court heard oral arguments Tuesday in Edenton in a case challenging maps used for legislative and congressional elections.
The court’s decision Harper v. Hall will not change maps for this year’s elections. The ruling would apply to the 2024 election cycle.
Plaintiffs tied to left-of-center activist groups challenge maps the Republican-led legislature drew for state House and Senate races. Legislative leaders have a challenged a court-imposed map for state congressional elections.
“The standard … for constitutionality is whether voters of all political parties have substantially equal opportunity to translate votes into seats,” said Elisabeth Theodore, one of two lawyers speaking for the plaintiffs during a Supreme Court session at the Historic 1767 Chowan County Courthouse. “The trial court committed legal error with respect to the [state] Senate map because it did not actually address that governing standard. Overwhelming evidence, including the reports of all three neutral advisers, showed that the remedial Senate plan failed that standard and significantly favored Republicans.”
A second plaintiffs’ attorney, Hillary Klein, asked the state Supreme Court to reject both the House and Senate legislative maps.
“All of the competent evidence shows that the House map denies substantially equal voting power,” she said. “This is not necessitated by the political geography of North Carolina.
With a party-line 4-3 vote in February, state Supreme Court Democrats threw out the original maps state lawmakers drew for legislative and congressional maps. When lawmakers submitted new maps to a three-judge trial court panel, that group accepted revised, or remedial, maps for state House and Senate. The panel rejected the remedial congressional map and substituted its own map, drawn by outside “special masters.”
Legislators’ attorney, Phil Strach, argued Tuesday that it’s unclear why the trial court made its decisions. He said each of the maps complied with guidance set out in the Supreme Court’s first ruling. Plaintiffs are asking the court to ignore that guidance, he argued.
“The plaintiffs here want to open this up to what they call this holistic analysis,” he said. “What that would do is simply transform redistricting into a game of ‘Gotcha!’ by litigants in the courts. Because there are so many ways to calculate these metrics, this approach would intentionally create ambiguity so that if the political result isn’t obtained by a particular litigant of whatever political persuasion, then they can come in and ask the court to second-guess it.”
Five of the seven justices lobbed questions at the attorneys.
Chief Justice Paul Newby, a Republican, challenged plaintiffs’ allegation that legislative leaders are trying to game the legal system by asking the state Supreme Court to dismiss an appeal of the court-ordered congressional map.
Senior Associate Justice Robin Hudson, a Democrat, authored the Supreme Court’s ruling throwing out the original maps. She questioned Strach’s assessment of the trial court’s role in the case.
“The trial court is supposed to oversee the redrawing by the legislature,” Hudson said. “How can they do that without reviewing the calculations and the methods that are used by the General Assembly in producing the product that they submit to the court for review?”
“They can and should review the metrics, but they should defer to what the General Assembly used unless what the General Assembly did was obviously and clearly wrong,” Strach responded.
Justice Anita Earls, another Democrat, asked Strach whether legislators are asking the Supreme Court to reverse its decision from February.
“The overarching question is whether or not all voters have the same opportunity to translate their votes into seats,” Earls said. “These measures are one way to address that, but the court should be looking at the totality of the circumstances.”
“What we would contend is what this remedial process proved is that’s not a judicially manageable standard,” Strach responded. “What it did is it gave the trial court carte blanche to pick the maps that it wanted to pick based on whatever reason it had.”
“This court is barreling into the political wilderness where the legislative authority to redistrict will be transferred from the legislature to the courts,” Strach said as the hourlong oral arguments concluded.
The case took an interesting twist in recent days. Tim Longest, a law clerk since 2020 for Hudson, began a leave of absence Saturday from his job. Longest is the Democratic candidate for the N.C. House District 34 race.
Legislative leaders raised questions Friday about whether Hudson had taken adequate steps to separate Longest from the redistricting case after he became a candidate for legislative office in July. Hudson issued an order Sunday announcing Longest’s leave from his clerk duties. The justice refused to provide any additional information about Longest’s role in the Harper v. Hall case.
Regardless of the Harper v. Hall case’s outcome, the General Assembly is likely to redraw North Carolina’s congressional map. When a trial court adopted a map created by appointed “special masters,” judges announced that the map would be used only for the 2022 election cycle.
The state Supreme Court will not have the final word about N.C. election maps. The U.S. Supreme Court is scheduled to hear arguments this year in Moore v. Harper. In that case, legislative leaders challenge the state high court’s ability to amend or reject lawmakers’ congressional election districts. A decision in that case is likely by June 2023.