How to watch as NC Supreme Court tackles voter ID and gerrymandering

Two political lawsuits focusing on voting rights and democracy are on the docket this week at the North Carolina Supreme Court.

The court has a 4-3 Democratic majority. In several other recent political cases, the justices have voted along party lines for their political party’s arguments. However, it’s possible these might be two of the last cases for a while to be heard by a Democratic majority. Two seats on the court are on the ballot this November. If Republicans win even one of those races, the GOP will retake the majority for the first time since 2016.

▪ On Monday, the justices heard oral arguments in a case over the constitutionality of the state’s 2018 voter ID law. Civil rights activists won at trial last year, and Republicans appealed. Republican lawmakers wrote the law after their previous attempt, from 2013, was struck down in court as racially discriminatory and unconstitutional.

▪ At 11 a.m. Tuesday, the justices hear a new round of oral arguments in a redistricting lawsuit from earlier this year. In February the court ruled 4-3, along party lines, to throw out maps drawn by the Republican-led legislature as unconstitutional partisan gerrymandering.

The legislature is now arguing in a separate case that the court shouldn’t have the power to issue such rulings in the future.

The court is holding the hearings in Edenton instead of at its main courthouse in downtown Raleigh. They can be watched on the YouTube page for the Supreme Court of North Carolina, where the arguments both stream live and are later uploaded to be viewed after the fact.

Voter ID

The cases share a theme: The Republican-led legislature is defending laws that Democratic challengers say harm democracy by diminishing the voting power of Democratic voters, particularly Black voters.

Lawmakers put the issue of voter ID on the ballot in 2018, for voters to decide — and voter ID won, with about 55% support statewide.

In a different case in August, the N.C. Supreme Court called into question the legitimacy of the decision to put that constitutional amendment on the ballot. The justices ruled 4-3, along party lines, that conservatives may have only had enough votes to propose the amendment in the first place due to racial gerrymandering that denied Black voters a fair say in legislative elections.

Monday’s case focused not on the broadly worded amendment, but on the details of the law that followed it. While Democrats say voter ID disenfranchises Black voters, Republicans say ruling it unconstitutional would disenfranchise the voters who want it, and who voted to add it to the state constitution.

Chief Justice Paul Newby, a Republican, questioned Monday whether anyone would actually be disenfranchised if voter ID were to be implemented. He said lawmakers wrote a provision that says even if people don’t have a photo ID, they can still vote if they can prove they had a “reasonable impediment” that stopped them from getting one.

“If nobody is prevented from voting, how does that show discrimination?” Newby asked.

Jeff Loperfido, an attorney for the Durham-based Southern Coalition for Social Justice who argued the case against the law, questioned whether the “reasonable impediment” carveout would work like Newby and the legislature suggested it would.

While the 2018 voter ID law hasn’t been allowed to be used yet, Loperfido said, the 2013 voter ID law was used once, in 2016. It had similar language offering an excuse to people who could prove a reasonable impediment, but Loperfido said the state still ended up stopping about 1,200 people without ID from voting, who would’ve otherwise been eligible — and who were disproportionately Black.

“The failsafe that was touted in 2016 did not work the way folks thought,” he said.

Other justices also chimed in at times. Justice Anita Earls, a Democrat and former voting rights attorney, questioned if the law could be unconstitutional, no matter what effect it would have in practice, as long as the lawmakers who wrote it acted with racially discriminatory intent. Justice Phil Berger Jr., a Republican whose father is the top-ranking Republican leader in the N.C. Senate, grilled Loperfido on whether the legislature could have written any voter ID law that his group wouldn’t have sued over.

Loperfido said that while “there’s no magic formula” to writing a voter ID law that passes constitutional muster, it could be possible. However, he said at other points in his argument, this version of voter ID law should be overturned.

“The Republican supermajority enacted (voter ID) at least in part to entrench itself by burdening the voting rights of African American voters, who in North Carolina reliably vote Democratic,” he said.

Peter Patterson, a Washington-based attorney for the Republican legislators, said there’s no way that can be true, since the legislature wrote such an expansive list of excuses for voters without IDs.

“The only way a party can entrench itself is if its political opponents are not able to vote,” he said. “And this legislation made sure that everyone can vote. ... This is the most forgiving reasonable impediment provision in the nation. So the notion that this was meant to be passed for partisan entrenchment just does not match up with the evidence.”

Redistricting

As for the redistricting case on Tuesday, the arguments focus more on partisanship than on racism. Democrats say Republican legislators drew new maps for themselves, as well as for the U.S. House of Representatives, that would give GOP candidates a massive advantage — and basically guarantee that Democrats couldn’t win a majority of seats even if they won a majority of votes.

Republicans largely haven’t denied those accusations. Instead they say they should be allowed to draw the maps how they want, noting that Democrats also used to gerrymander the districts when they controlled the state legislature.

The redistricting case, called Harper v. Hall in state courts, has also since morphed into a related lawsuit at the U.S. Supreme Court where it’s now called Moore v. Harper.

In that federal case, state lawmakers are arguing that they alone should have decision-making power over federal elections, and that state courts should be banned from reviewing the legislature’s election-related decisions and ruling the legislature’s actions unconstitutional.

Legislative leaders say that even though state courts have long had the power of judicial review, the U.S. Supreme Court should step in now to end it, at least where federal elections are concerned.

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