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Judicial Whiplash in North Carolina Redistricting Case

The new court majority reversed itself and found the state constitution powerless to confront partisan gerrymandering.


The North Carolina Supreme Court recently added another page to the long-running saga of Harper v. Hall. In that case, the court initially found that congressional and state senate maps drawn by the legislature violated the North Carolina Constitution because they were partisan gerrymanders. Now the court, which flipped to a conservative majority this year, has reversed itself and held that the state constitution doesn’t prohibit partisan gerrymandering.

Political questions and originalism in the state context

The North Carolina Supreme Court’s reconfigured majority made two especially important decisions about how to interpret the state’s constitution. First, it adopted the political questions doctrine that the U.S. Supreme Court cited to reject gerrymandering challenges in Rucho v. Common Cause. The doctrine says that courts should refrain from ruling on certain issues because one of the elected branches of government has authority to decide them. According to the U.S. Supreme Court, this will often be when there are no clear legal standards to apply.

The political questions doctrine rests largely on concerns about judicial humility and judicial competence. Rucho worried about “the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.” The Harper majority echoed such concerns.

But should the North Carolina high court think about its legitimacy the same way the U.S. Supreme Court does? U.S. Supreme Court justices are appointed and have life tenure, while North Carolina Supreme Court justices run in partisan statewide elections. They might be more politically accountable to the people than not only the U.S. Supreme Court but also state legislators, because they cannot gerrymander statewide boundaries to secure a favorable electorate the way legislators can. Why is it inherently less legitimate for a justice who has won almost 2 million votes to weigh in on redistricting than it is for a legislator who has won 20,000 votes in a district?

The second interpretive decision of interest was how to understand provisions that appear in state constitutions but not the federal Constitution. The North Carolina Constitution promises, for example, that “all elections shall be free.” In construing the guarantee of free elections, the Harper majority primarily relied on the originalist approach now favored by the U.S. Supreme Court. It concluded from its historical review that the free elections clause didn’t prohibit gerrymandering when it was first adopted in the 1776 constitution, and it found that original understanding of the free elections clause binding on the court today.

Setting aside whether an originalist lens is the right way to read a constitution, an originalist analysis in North Carolina should probably look different than it does at the federal level. We have only had one federal Constitution in our history. But, like most other states, North Carolina has written several. It adopted one during the American Revolution, one during Reconstruction, and one in 1971. When a provision appears in multiple versions of a constitution, state courts will sometimes assume that the provision means the same thing in the latest version that it did in the original. The Harper majority found that the free elections clause in North Carolina’s 1971 constitution allowed partisan gerrymandering largely because the free elections clause in the 1776 constitution did.

There has historically been a divide among originalists about how much the intent of the drafters of a constitutional provision should matter. Justice Scalia famously argued that what mattered was how an ordinary reader would have understood the constitutional provision when it was adopted, not what the drafters intended. That raises an important question: did the North Carolina voters who ratified the 1971 constitution really understand the free elections clause to mean the same thing it did in 1776? There is reason to think not. Between 1776 and 1971, suffrage expanded to include racial minorities and women, and the U.S. Supreme Court had found the federal Constitution protected a one-person, one-vote principle and that racial gerrymandering was unconstitutional. As such, in light of intervening developments, voters in 1971 might have had a more expansive view of what a “free” election was. The legislators may not have intended the free elections clause to incorporate such developments, as the Harper majority suggested, but that doesn’t prove North Carolina voters agreed.

Potential consequences for North Carolina voters and respecting precedent

What might be most troubling about this case is the consequences for political representation at the state level. At no point did the majority ever dispute that gerrymandering was damaging. Nor did it dispute that gerrymandering happened in this case and that it was egregious. But it held that it was mostly powerless to stop it. That means there is no short-term prospect for fighting gerrymandering in North Carolina.

One option would be for legislators to draw fairer maps. But they lack the incentive to do so. How often do legislators deliberately do things that make it harder for them to keep their jobs?

The only other option would be for North Carolina voters to pass a constitutional amendment banning partisan gerrymandering to tie legislators’ hands. But the only way they can do that is if 60 percent of the members of each house of the legislature agree to submit the amendment to the public. A gerrymandered legislature can veto any amendment to fight gerrymandering.

The case also arose under an unusual procedural posture. Normally, once a court rules in favor of one of the parties, the proceedings are over. Here, the majority invoked a rarely used procedural mechanism to rehear the case, concluding that the court had earlier “overlooked or misapprehended” the applicable law when it found partisan gerrymandering unconstitutional. Both the majority and dissent acknowledged the political context: the November 2022 midterm elections saw the North Carolina Supreme Court go from a 4–3 Democratic majority to a 5–2 Republican majority. In a vigorous dissent, Justice Anita Earls argued that the earlier decision in Harper was “vacated by a Republican-controlled Court seeking to ensure that extreme partisan gerrymanders favoring Republicans are established.” The majority responded that “it is not uncommon that rehearing of a case coincides with a change in personnel on the Court who provide a fresh legal perspective.” 

If a postelection change in a court’s composition is a reason to repudiate prior opinions in the same case, we might see more such behavior in the future. It suggests that stare decisis, the notion that courts should adhere to precedent, might have even less force at the state level than it does at the federal level.

Marcus Gadson is an assistant professor of law at Campbell University.





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