A Judicial Coup in North Carolina
Four Democratic Justices again reveal their partisanship.
By The Editorial Board, WSJ
Dec. 18, 2022 5:25 pm ET
Democrats claim the U.S. Supreme Court will subvert democracy if it overrules a North Carolina decision on legislative gerrymandering. But an extraordinary ruling Friday by the North Carolina Supreme Court shows why such U.S. judicial intervention is warranted.
Four Democratic Justices struck down the GOP Legislature’s state Senate map and voter ID requirement—two weeks before the judges are set to lose their majority. The 4-3 Democratic majority has repeatedly overruled the GOP Legislature in election cases. Its ruling to overturn the Congressional map produced Moore v. Harper, the gerrymander case the U.S. Supreme Court heard this month.
That case involves the U.S. Constitution’s Elections Clause, which says the time, place and manner of Congressional elections shall be prescribed “in each State by the Legislature thereof.” Democrats say Legislature should be construed broadly and that state judges can check partisan lawmakers. But the North Carolina Supreme Court’s two decisions Friday underline how state judges can act as partisans and subvert democracy.
In February the four Democratic Justices ruled that the state legislative and Congressional maps violated the state constitution’s guarantee of free elections and speech. Their concocted grounds were that the maps would prevent elections from reflecting the will of the people and burden the right to equal voting power based on political viewpoint. Translation: They resulted in too few Democratic seats.
The Justices ordered the Legislature to redraw the maps and a trial court to review them based on various statistical metrics. To judge the redrawn maps, the trial court appointed three special masters, who hired four political scientists. Based on their advice, the trial court approved the legislative maps and rejected the Congressional map.
The special masters and their assistants then redrew the Congressional map, which legislative leaders appealed to the U.S. Supreme Court and is the focus of Moore. Meantime, liberal plaintiffs backed by Eric Holder’s National Redistricting Foundation challenged the state legislative maps because they still weren’t Democratic enough.
On Friday the state Supreme Court agreed with respect to the state Senate map—and here’s the kicker. The Democratic Justices cast aside their earlier ruling that maps that complied with statistical tests would be “presumptively constitutional.” The Senate map complied, but the Justices struck it down anyway because of the “contextual factual finding” that Democrats didn’t vote for it.
In sum, the Democratic Justices gave themselves unchecked authority over redistricting. As Republican Chief Justice Paul Newby explained in a dissent, the majority’s vague criteria for judging maps “ensures that four members of this Court alone understand what redistricting plan is constitutionally compliant.”
Mr. Holder praised the decision, saying it “could influence the outcome of Moore v. Harper” since “the North Carolina Supreme Court clarified its role under state law as a check over the state legislature when it comes to redistricting” and “the Supreme Court of the United States will have to be held to that interpretation.”
Uh, no. The U.S. Supreme Court isn’t bound by state judges’ interpretations. While the Senate map, unlike the Congressional map, doesn’t implicate the U.S. Constitution’s Elections Clause, Democratic Justices are again revealing their partisanship.
In the voter ID case, the Justices overruled a U.S. Fourth Circuit Court of Appeals decision. The three-judge federal panel noted that the law was far less strict than other states’ photo ID requirements, and plaintiffs produced no evidence it was passed with racial animus or would abridge minorities’ right to vote.
Democratic Justices nonetheless said the Fourth Circuit ruling “is neither controlling nor persuasive” because it didn’t “have the benefit” of liberal experts who presented testimony in state court. None of them showed the law had a discriminatory intent, but the four Justices claimed the history of voter suppression in North Carolina was enough to strike it down.
The four Justices also complained that the Legislature passed the ID requirement during a lame-duck session before they would lose their veto-proof majority. This is ironic given that the Justices rushed out their two decisions shortly before they lose their majority. Last month North Carolina voters elected two new Republican Justices despite being outspent three-to-one.
Who better represents democracy in North Carolina—an elected Legislature, or four state judges who flip their judicial logic when it suits their partisan ends? Let’s not hear any more jabberwocky about judges subverting democracy if the U.S. Supreme Court rules that Legislature means Legislature.