By Mitch Kokai, Carolina Journal

The N.C. Supreme Court has rejected state congressional and legislative election maps with a party-line 4-3 vote. The court's four Democratic justices agreed to strike down maps drawn by a Republican-led legislature.

State lawmakers will have until Feb. 18 to submit new maps for a three-judge panel's consideration. That panel must approve the legislative maps or its own alternative maps by Feb. 23. Candidate filing for all N.C. elections will resume as scheduled Feb. 24. Primary elections will take place May 17, according to the order signed by Justice Robin Hudson, the senior Democrat.

Democratic justices concluded that the GOP maps violated state constitutional provisions protecting free elections, freedom of speech, and freedom of assembly, along with the guarantee of equal protection of the laws.

"To comply with the limitations contained in the North Carolina Constitution which are applicable to redistricting plans, the General Assembly must not diminish or dilute any individual's vote on the basis of partisan affiliation," according to the order. "The fundamental right to vote includes the right to enjoy 'substantially equal voting power and substantially equal legislative representation.'"

"This encompasses the opportunity to aggregate one's vote with likeminded citizens to elect a governing majority of elected officials who reflect those citizens' views," the order continued. "When, on the basis of partisanship, the General Assembly enacts a districting plan that diminishes or dilutes a voter's opportunity to aggregate with likeminded voters to elect a governing majority — that is, when a districting plan systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size — the General Assembly unconstitutionally infringes upon that voter's fundamental right to vote."

"The General Assembly violates the North Carolina Constitution when it deprives a voter of his or her right to substantially equal voting power on the basis of partisan affiliation," the order added.

Lawmakers must submit more than just new maps when they comply with the Supreme Court's order. "The General Assembly shall submit to the trial court in writing, along with their proposed remedial maps, an explanation of what data they relied on to determine that their districting plan is constitutional, including what methods they employed in evaluating the partisan fairness of the plan."

Chief Justice Paul Newby wrote for the court's three Republican justices.

"I dissent from the decision of the Court which violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution," Newby wrote. "As predicted by the Supreme Court of the United States, this Court's decision results in an 'unprecedented expansion of judicial power.'"

"By choosing to hold that partisan gerrymandering violates the North Carolina Constitution and by devising its own remedies, there appears to be no limit to this Court's power," Newby added.

Like the U.S. Supreme Court in its 2019 Rucho v. Common Cause opinion, Newby would consider partisan gerrymandering claims off limits for courts. "The issue before us — partisan consideration in redistricting — is both constitutionally committed to another branch of government, the General Assembly, and lacking in satisfactory legal standards," Newby wrote. "Thus, a claim for partisan gerrymandering presents a nonjusticiable political question."

"A majority of this Court, however, tosses judicial restraint aside, seizing the opportunity to advance its agenda," Newby wrote of his Democratic colleagues. "There is no express provision of the constitution supporting the decision of the majority; there is no showing that the enacted redistricting plans are unconstitutional beyond a reasonable doubt. A summary pronouncement by the majority to the contrary does not make it so."

"In the majority's view, it is this Court, rather than the people, who hold the power to alter our constitution," Newby added. "Thus, the majority by judicial fiat amends the plain text of Article I, Sections 10, 12, 14, and 19, to empower courts to supervise the legislative power of redistricting arising from complaints of partisan gerrymandering. Such action constitutes a clear usurpation of the people's authority alone to amend their constitution."

The chief justice noted the absence of any clear standard to guide the General Assembly in drawing new maps. "[T]he Court must provide a manageable standard to determine when a proposed redistricting plan is constitutional," he wrote. "The Court has failed to do so. The majority's requirements are so vague as to only allow this Court to ultimately determine a plan's constitutionality. With this ruling, the majority moves beyond traditional judicial decision-making in favor of judicially amending the constitution."

The Supreme Court's order prompted a response from Sen. Ralph Hise, R-Mitchell, who helped lead the state Senate's redistricting efforts.

"Democratic judges, lawyers, and activists have worked in concert to transform the Supreme Court into a policymaking body to impose their political ideas," Hise said in a prepared statement. "On this and other cases soon to come before them, the justices 'interpret the Constitution to mean what it would have said if they, instead of the Founding Fathers, had written it,' in the words of former justice Sam Ervin Jr."

After his service on the N.C. Supreme Court, Ervin won national fame as the U.S. senator who helped expose the Watergate scandal in the 1970s. His grandson, Sam "Jimmy" Ervin IV, is one of the Democratic justices who voted to throw out the election maps.

Hise issued a warning about the Supreme Court's actions. "This perverse precedent, once set, will be nearly impossible to unwind, as monied interests line up to buy their own justices to set law favorable to them," he said. "I’m certain Democrats will come to regret it."