Litigious activist plans on voter ID and redistricting set to be upended

February 4th, 2023

Happy Saturday morning. Thanks for joining us.

Today we’re talking about the consequences of the no-holds-barred litigation strategies of opponents to voter ID and redistricting policies. They won major legal victories that forced Republicans to severely moderate on both fronts.

But the litigious activists couldn’t leave well enough alone. They plowed the pendulum through the moderate center and swung it way up the other side, from one extreme to another.

And now they may lose the whole war.

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Voter ID and redistricting are perennial legal and political flashpoints in North Carolina.

In the early 2010s, Republican legislators, emboldened by winning majorities for the first time in more than a century, took aggressive postures on voter ID and redistricting policy.

They were largely rebuffed by the courts and suffered periods of stinging media attention.

In response, they moderated their policy decisions. The legislature passed the most permissive photo voter ID law in the country (voters could cast ballots even without an ID). Republicans adopted a redistricting process that banned political data and permitted anybody anywhere to livestream every step of the map-drawing process.

Those two policy choices are fairly radical departures from positions Republicans held just a few years prior. They could even be viewed as policy wins for Democrats. (That spin would look something like this: “We fought against extreme positions, achieving a vastly improved voter ID law and a transparent redistricting process that litigators can pick apart with a fine-toothed comb.”)

But they couldn’t leave well enough alone.

Despite the major policy concessions from Republicans, the Democratic litigants pressed sympathetic courts to do more. In so doing, they invited judicial overreach – and the North Carolina Supreme Court gladly accepted.

CASES, DECISIONS, AND CONSEQUENCES

In its late-2022 decisions striking down voter ID and state legislative maps, the high court introduced new legal standards that never existed before or that violated historical precedents. Left unremedied, the decisions could usher in a period of judicial activism never before seen in this state.

Take the court’s decision in Holmes v. Moore, which ruled the 2018 voter ID law unconstitutional. The legal standard that exists requires the court to presume the legislature acted in good faith – that is, without discriminatory intent – unless there is evidence that clearly shows otherwise.

But the judges applied – and therefore established precedent for – the precise opposite standard. They reasoned that the legislature didn’t adequately prove an absence of discriminatory intent. As Justice Phil Berger, Jr., wrote in his dissent, “The order does not even mention the presumption of legislative good faith, let alone apply it.”

The Supreme Court also introduced new standards that would fundamentally change the state judiciary’s treatment of long-held legal principles. Lawyers for legislative leaders argued, for example, that the decision would “empower litigants to ask courts to enjoin the enactments of the General Assembly without claims or evidence of any disparate effect.”

A similar pattern holds for Harper v. Hall, the Supreme Court’s decision to invalidate state legislative maps for the 2024 election.

Republicans confined themselves to a redistricting process that banned political data from mapmaking computers and live-streamed every stroke of the pen. It was a radical departure from the process that existed in North Carolina for over a century – a process defined by closed-door scheming and political consultants.

Rather than accept those changes while continuing to press for more statutory reforms, the redistricting litigants asked the Supreme Court to claim for itself the power to draw political districts. The court obliged, drawing such lopsidedly partisan boundaries that only one of the state’s 14 congressional districts was competitive.

What’s more, the court introduced several mathematical tests to gauge future redistricting. None of them have ever been passed into law, and some have been widely debunked. The court declined to say, though, which one or combination of those flawed tests legislators should employ to answer whether a map is constitutional. It’s an entirely unworkable setup that guarantees protracted litigation every time a new map is adopted.

As lawyers for legislative leaders wrote recently, “Only the four members of the [Supreme Court] majority can or will know a gerrymander when they see it; everyone else must await their Delphic pronouncement.”

SHOULD’VE LEFT WELL ENOUGH ALONE

To recap: Democratic Party-affiliated litigants successfully defeated aggressive Republican efforts on voter ID and redistricting. They forced moderation on both issues. But they didn’t stop there. They pressed ahead in pursuit of complete policy victories, and they far overshot their available runway.

It’s now the judiciary that requires moderation – or, to be more precise, two Supreme Court opinions that sit well outside the bounds of reason.

Legislative leaders recently asked the newly-constituted Republican majority on the state Supreme Court to reconsider both Holmes v. Moore (voter ID) and Harper v. Hall (redistricting).

This is not some nefarious effort that falls outside the regular legal process. Rather, the rehearing requests are standard. The N.C. Rules of Appellate Procedure say, “A petition for rehearing may be filed in a civil action within fifteen days after the mandate of the court has been issued.”

Because the outgoing Democratic majority on the high court waited so long after the election to issue their opinions, it just so happened that the window to file a petition for rehearing extended into the beginning of the new court’s term.

Based on the dissenting opinions of the justices who are now in the majority, as well as the quite radical departure from legal precedent contained within decisions, Republican legislators appear poised to win their counteroffensive.

And this analysis doesn’t even contemplate an impending decision from the U.S. Supreme Court in Moore v. Harper that may well disqualify state courts from jurisdiction over any future redistricting litigation.

All of this was avoidable. Had activists not pressed their advantage to the extreme, and had sympathetic justices not contorted legal reasoning to achieve their desired policy outcome, North Carolina would look very different right now.

We would have an extraordinarily lenient voter ID law, and we would have a uniquely transparent redistricting process that forbids political data.

Instead, a near-veto-proof Republican majority may well have to rewrite the voter ID law, this time without the prospect of a hostile judiciary.

And Republican majorities will soon redraw legislative maps, perhaps bolstered by a U.S. Supreme Court opinion that disqualifies state judicial review.

The litigious activists couldn’t leave well enough alone.