A political court case that has stirred controversy for years in North Carolina was back on the docket Thursday, with new arguments in Wake County Superior Court that could have far-reaching implications in state government.
The case, filed in 2018 by the NAACP, argues that for years the state legislature was so racially gerrymandered that lawmakers lost their ability to claim to represent the entire state.
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The biggest question Thursday: Should the two sides even bother with the new trial that the North Carolina Supreme Court has ordered in this case? The trial court judges could simply dismiss it, perhaps in an effort to fast-track the case back to the Supreme Court — where political control of the court has flipped since the last time this case was heard.
Courts have already found, in multiple rulings throughout the past decade, that Republican lawmakers drew the state’s political districts during much of the 2010s to diminish the voting influence of Black North Carolinians — and artificially inflate white political power — in a state where about one in every four people is Black or multiracial.
This case deals with a broader, more philosophical question: Whether that fact should invalidate certain actions the legislature took in those years when it was unconstitutionally gerrymandered.
The NAACP is relying on that argument in its attempt to throw out two state constitutional amendments that voters approved, with backing from Republican politicians, during the 2018 elections, on voter photo identification and a new income tax cap.
Martin Warf, a lawyer for the legislature, argued Thursday that longtime legal precedent in North Carolina says there's a very high bar for striking down anything the legislature does as unconstitutional. The legislature wants the case tossed out, claiming the NAACP won't be able to meet that high bar.
"When challenging an act of the General Assembly, you have to prove that act’s unconstitutional beyond a reasonable doubt," he said.
Kym Meyer, a lawyer representing the NAACP, pointed Thursday to the wins they've already had in this case over the past six years. There's no reason to believe they won't be able to prove their arguments yet again in this new trial, she said. She urged the judges to deny the legislature's motion to dismiss the case.
"There have been some really tough legal questions in this case," she said. "But the question before you today, your honors, is not a tough question. It is an easy motion for you to deny."
The three-judge panel hearing the case had several questions for both sides and decided not to immediately issue a ruling.
Tax rates, voter ID challenged
One of the 2018 constitutional amendments lowered the state’s maximum possible income tax rate, making it harder for state lawmakers in the future to raise taxes. Another instituted voter identification laws, which are being used in this year’s elections after years of legal delays caused by separate lawsuits challenging their constitutionality.
Even though voters approved the amendments, the NAACP argued that the amendments shouldn’t have been on the ballot in the first place. Republican lawmakers wouldn’t have had the votes to put the amendments on the ballot, the lawsuit claims, if not for gerrymandering.
The NAACP won at trial, lost at the state Court of Appeals and received a mixed result at the North Carolina Supreme Court. The high court in 2022 ruled that the argument, in general, seemed correct: Racially gerrymandered legislatures don’t inherently have the authority to change the state constitution. But the state Supreme Court found some of the evidence specific to this case lacking, so the justices sent it back to trial with orders to do more analysis and issue a new ruling.
Thursday’s hearing will give the panel of judges assigned to the case the chance to determine how, or whether, a new trial would proceed. One main question is simply what the next steps should look like — an entirely new trial, or just a shorter evidence-gathering period. The judges expressed some confusion about what the Supreme Court wanted them to do, given the complicated history of the case it has bounced around the court system for years.
"Trying to square this opinion and the mandates, with practicality of everything, is just where it all sort of falls apart," said Franklin County Superior Judge Cynthia Sturges, one of the three judges from across the state picked to hear the case.
Warf on Thursday said that even despite the NAACP's partial victory at the Supreme Court in 2022, the Supreme Court has issued several key rulings since then that could change how to interpret state law, including a new ruling on health care policy just last week that he said included new instructions for how trial courts should deal with constitutional challenges.
Politics and the court
The Supreme Court’s 4-3 ruling, authored by Democratic Justice Anita Earls, came down entirely along party lines. It was one of the last cases the court ruled on before Republicans flipped control of the bench in the 2022 elections. In her ruling, Earls noted the historic nature of the arguments.
“This case involves completely unprecedented circumstances that give rise to a novel legal issue directly implicating two fundamental principles upon which North Carolina’s constitutional system of government is predicated: the principles of popular sovereignty and democratic self-rule,” she wrote.
The case also highlighted the political divisions sometimes lurking at the Supreme Court. Earls was a longtime anti-gerrymandering advocate and civil rights attorney before being elected to the Supreme Court, where she’s currently the only Black justice. The dissenting opinion was written by Republican Justice Phil Berger Jr., whose father has been the leader of the state Senate since 2011 and in that role oversaw the racial gerrymandering in question as well as the efforts to pass the new amendments.
Berger’s dissenting opinion accused the Democratic justices of judicial activism motivated by political animus against his father and other legislative Republicans. “One could argue that this Court has circumvented the will of the people and subverted our republican form of government,” he wrote.
The court currently has a 5-2 Republican majority. Should the case go back up to the Supreme Court, the balance of power could depend on the outcome of elections between now and whenever the case comes back up.
One seat on the court is up for election this year, held by Democratic Justice Allison Riggs. Earls is up for reelection in 2026.
What happens next
One of the arguments in this new version of the trial dealt with whether it should be heard by a single judge — like the original trial was — or by a three-judge panel, like the new trial currently is.
The NAACP wanted to go back a single judge, which would make it more likely to be heard by a Democratic judge since the case was filed in Wake County where most judges are Democrats. The legislature has so far succeeded in keeping the case it in front of the three-judge panel that heard Thursday's hearing. Those judges were handpicked for this case by Supreme Court Chief Justice Paul Newby, a Republican.
The panel includes two Republicans, Sturges and Wilkes County Superior Court Judge Michael Duncan, and one Democrat, Robeson County Superior Court Judge James Gregory Bell.
In Thursday's hearing, Sturges indicated that whatever they decide ultimately might not matter much since case is almost certainly going back up to the Supreme Court. "I feel like this opinion is ambiguous," she said of Earls' order from 2022. "I feel like the only people who can fix it are the Supreme Court."
Warf immediately interjected that he agrees with her, and that's why the trial court should go ahead and dismiss the case now, so that it can be appealed more quickly without taking the time to look at any more evidence.
Meyer disagreed. If the judges feel confused, she said, then clearly there needs to be more evidence shown — which she pointed out is exactly what Earls' order mandated two years ago.
"The Supreme Court set down a very clear mandate," Meyer said. "They said, 'Here's the test, you need to go conduct discovery, and then a lower court will look at your facts and will apply the test. And then they'll make a determination.'"