This new opinion may affect the disposition of a case currently before the U.S. Supreme Court.

Contrary to its wrongly decided prior decision that held that partisan gerrymandering violated the state constitution, the court issued an opinion in Harper v. Hall on April 28, holding that the “constitution [of North Carolina] expressly assigns the redistricting authority to the General Assembly, subject to explicit limitations in the text” and the “limitations do not address partisan gerrymandering.”

The new opinion was highly critical of the prior 2022 opinion, stating that it is “not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch” of the state government.

The court also pointed out that there are “no judicially discoverable or manageable standards for adjudicating such a claim.” The new majority chastised the four justices who wrote the original majority opinion and who had claimed they had the right to interfere in the redistricting decisions made by the state Legislature, adding, “the constitution does not require or permit a standard known only to four justices.”

As the new majority noted, “creating partisan redistricting standards is rife with policy decisions” that “belong to the legislative branch, not the judiciary.”

This case has a complicated procedural history. After the 2020 census, the North Carolina General Assembly enacted new redistricting plans for the state Senate and state House of Representatives, as well as for the U.S. House of Representatives. Those plans were challenged in state court under various theories, including that the state Legislature had engaged in partisan gerrymandering to benefit the Republican Party in violation of the North Carolina Constitution.

In a 4-to-3 decision issued in February 2022, the majority—all judges who had been elected as Democrats—held that partisan gerrymandering violated the free elections, equal protection, free speech, and free assembly clauses of the state constitution, overturning prior precedent cited in the lower court decisions that partisan redistricting did not violate the state constitution and there were no judicially manageable standards in any event.

In fact, as the lower court correctly said, redistricting “is one of the purest political questions, which the legislature alone is allowed to answer.”

However, the majority disagreed, citing vague provisions on “fair” and “free” elections in the state constitution and ignoring the specific provisions within the state constitution dealing with redistricting that have no language whatsoever about partisan redistricting. They then proceeded to appoint “special masters” to draw their own remedial maps.

It should be noted that North Carolina has been a state since 1789. Democrats controlled the state until 2010, when Republicans finally gained control of the state Legislature. During the more than 200 years that Democrats controlled the state, including the drafting of all redistricting plans, no one ever interpreted the state constitution to ban partisan gerrymandering.

The state Legislature appealed the decision of the state Supreme Court to the U.S. Supreme Court. It argued in Moore v. Harper that because Section 4, Article I of the U.S. Constitution gives the authority to the “Legislature” of each state to determine the “Time, Places, and Manner of holding Elections for Senators and Representatives,” including drawing boundary lines for congressional districts, the state Supreme Court violated the U.S. Constitution when it overrode the legislature’s redistricting plans and drew up its own plans.

As the state Legislature argued, the state Supreme Court’s actions “nullify[ing] the North Carolina General Assembly’s regulations of the manner of holding federal elections in the State … are fundamentally irreconcilable with the Constitution’s Elections Clause.”

Oral argument was held in the U.S. Supreme Court on December 22, and we have been awaiting a decision on that very fundamental constitutional question. But something else very important happened in the November elections: Two of the Democrat elected North Carolina justices who were in the original majority were defeated in their reelection bids and were replaced by two Republican judges, swinging the court from a 4-to-3 Democratic majority to a 5-to-2 Republican majority.

Even though the North Carolina Legislature has been awaiting a decision from the U.S. Supreme Court, it filed a motion for reconsideration with the state Supreme Court, asking it to vacate its prior decision.

On April 23, the state court did exactly that. The dissent, written by Justice Anita Earls and joined by Justice Michael Morgan, claims that the newly constituted majority is engaging in a “shameful manipulation of fundamental principles of our democracy and the rule of law.” But that’s ironic since they (and their two former colleagues who lost reelection) were the ones acting like politicians in vetoing the actions of the state Legislature and drawing up their own redistricting plans when they had no legal or constitutional authority to do so.

The key question that now remains is, what happens to the U.S. Supreme Court’s case? Will the justices decide that the new decision of the North Carolina Supreme Court moots the case before them? The U.S. Supreme Court issued an order on May 4 inviting the parties to file additional briefs on what “effect” the state Supreme Court decision has on the U.S. Supreme Court’s “jurisdiction.”

In its conclusion, the North Carolina Supreme Court provided a summary of the problem we have all over the country of activist judges who ignore the law and issue decisions based on their ideology and political opinions:

For 200 years, our Supreme Court has faithfully sought to implement the intent of the drafters of our state constitution by interpreting that foundational document based on its plain language and the historical context in which each provision arose.

Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution. Today, we return to the text of the state constitution, correct our course, and come back to the proper understanding and application of our fundamental constitutional principles.

We can only hope that more state and federal judges follow the example of these state court justices from the Tar Heel State in returning to applying the law, not rewriting it.

Originally published by The Daily Signal. Republished with permission.

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