Why the GOP-dominated North Carolina Supreme Court is likely to uphold partisan gerrymandering: attorney

21 March 2023

In February 2022, the North Carolina Supreme Court struck down a gerrymandered congressional map drawn by Republicans as a violation of the state's constitution. That case is Harper v. Hall, not to be confused with Moore v. Harper — a separate but related case that has gone all the way to the U.S. Supreme Court.

Since February 2022, there has been a sea change on the North Carolina Supreme Court — which is now dominated by Republicans and has decided to revisit Harper v. Hall. Attorney Shan Wu, a former federal prosecutor, fears that the justices are almost certain to restore the gerrymandered congressional map that was struck down 13 months ago.

In an op-ed published by the Daily Beast on March 21, Wu explains, "It’s still the North Carolina Supreme Court, but last year's state elections changed the Court's political majority from Democrat to Republican. Despite the fact that the political affiliation of judges is not a legal basis for overturning cases, that seems to be the only reason the case is being reheard. Sound familiar?"

Wu continues, "Recall the dissenting opinion by Supreme Court Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in Dobbs v. Jackson, where the majority struck down the precedent of Roe v. Wade that had stood for a half-century…. The new Republican majority of the North Carolina Supreme Court is following SCOTUS' lead by doing the same thing…. Only twice in the past 30 years has the (North Carolina) High Court granted requests for rehearings."

In law, the Latin term stare decisis means respect for precedent. It means "let the decision rest." When Sen. Susan Collins voted to confirm Justice Brett Kavanaugh to the U.S. Supreme Court in 2018, she insisted that he considered Roe v. Wade "settled law." But Collins was wrong. In 2022, Kavanaugh was among the justices who voted to overturn Roe in Dobbs v. Jackson Women's Health Organization; clearly, "stare decisis" was not a priority for Kavanaugh in that case.

On both the North Carolina Supreme Court and the U.S. Supreme Court, Wu argues, respect for precedent is falling by the wayside.

"The underlying rationales between the state and SCOTUS matters are the same: Republican majorities want the power to do what they please with election laws," the former federal prosecutor points out.

In Moore v. Harper, North Carolina Republicans are asking the U.S. Supreme Court to consider the "independent state legislature theory" — a far-right fringe legal concept claiming that only state legislatures should be allowed to make decisions on elections. According to the most severe form of ISL, a state's judicial and executive branches should be excluded from election-related decisions — only state legislators are allowed.

"The position taken in the North Carolina rehearing — as well as the ILST argument before SCOTUS —would eliminate the state courts and the governors, leaving only state legislatures to make these decisions," Wu observes. "Recognizing the impact of the North Carolina Supreme Court rehearings, SCOTUS has asked for additional briefing from both the Justice Department and the parties petitioning the nation's highest court for additional briefings on how the decision to rehear the cases may affect the decision in SCOTUS."

Read Shan Wu’s full op-ed for the Daily Beast at this link.

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