NC Supreme Court Will Rehear Voting Rights Cases in March

The 5-2 Republican-majority NC Supreme Court began hearing arguments earlier this month.

Irving Joyner, Law Professor, NCCU
Irving Joyner, Law Professor, NCCU
By Cash Michaels –

According to observers, there are strong indications that the court is prepared to erase several of the important decisions made by the 4-3 Democratic majority court last term.

In his recent analysis of the new Republican court majority, Irving Joyner, professor of law at North Carolina Central University School of Law in Durham said: “We can expect this newly minted North Carolina Supreme Court to reverse the recent voting rights and voter protection opinions which were recently decided by that court. These politically motivated reversals will be unprecedented in North Carolina law and cement the present Supreme Court, which will be in power for the next eight years.”

The GOP majority court voted to rehear two important voting rights cases already decided just a few months ago.

The first voting rights case to be reheard will be Holmes v. Moore, where the high court on Dec. 16, 2022 struck down the 2018 Voter I.D. law passed by the Republican-led General Assembly because it was ruled racially discriminatory and thus, unconstitutional. Observers say after rehearing arguments next month, expect the new, conservative Supreme Court majority to rule that the 2018 voter ID is not racially discriminatory—primarily because Republican legislative leaders say it is not.

[Editor’s note: one of the new justices, Philip Berger, Jr., is the son of NC Senate President pro tempore Phil Berger, who is one of the plaintiff’s in the rehearing case. Despite that first-degree relationship, the justice refuses to recuse himself from voting on his own father’s case.]

Justice Michael Morgan
Justice Michael Morgan

Also, expect the same predicted outcome by the High Court after rehearing Harper v. Hall in March. On December 16th, whereby the NC Supreme Court agreed with plaintiffs that the second version of a 2020 congressional redistricting map, in addition to the state Senate voting map, “violates the state’s constitutional guarantees of free, fair and honest elections, equal protection under the law, freedom of speech, and freedom of assembly.”

The two African American associate justices left on the court, Justices Anita Earls and Michael Morgan, made clear in their written descents that rehearing the cases was highly improper and reeked of politics.

Justice Morgan noted, “The allowance of this extraordinary remedy to petitioners in this case, under the existent circumstances, may serve to foment concerns that North Carolina’s highest state court is engaged in the determination of challenging and legitimate legal disputes with a perceived desire to reach outcomes which are inconsistent with this Court’s well-established principles of adherence to legal precedent, stare decisis; and the rule of law.”

Justice Anita Earls
Justice Anita Earls

Justice Anita Earls was also not pleased with the prospect of rehearing cases. She stated, “The majority’s order fails to acknowledge the radical break with 205 years of history that the decision to rehear this case represents. It has long been the practice of the North Carolina Supreme Court to respect precedent and the principle that once the court has ruled that ruling will not be disturbed merely because of a change in the Court’s composition.

“Indeed, data from the Supreme Court’s electronic filing system indicate that, since January 1993, a total of 214 petitions for rehearings have been filed, but rehearing has been allowed in only two cases. It has been the understood practice of this Court that rehearing is not allowed solely because a Justice may have had a change of heart after the opinion in the case has been issued or because an opinion was controversial.”

However, Republicans on the court saw no problem with the GOP petitions for rehearing the cases. All parties are now required to file briefs in preparation for March 14, 2023 rehearing. Meanwhile, the court heard arguments in two other cases of particular interest to African Americans.

On Feb. 2, 2023, justices heard arguments in the Community Success Initiative v. Moore, where Republican justices insisted that ex-felons could only earn back their voting rights as prescribed by an old 1970s law—a law that critics maintain was based on the intent to disenfranchise African Americans from their voting rights and should be deemed unconstitutional. A ruling is expected on that case soon.

In addition, the court heard arguments on the constitutionality of prosecutors using race as a tool to eliminate Black prospective jurors from capital cases where Blacks are the defendants, in an effort to convict with an all-white jury.

Prof. Joyner says, “the new High Court is about to turn the clock back on hard-fought for gains by African Americans. The newly constructed Supreme Court is in place today because African Americans, racial minorities and many other progressive voters failed to fully participate in the 2022 elections,” Joyner says. “When you don’t vote, you get the government that other people wish to be in control. As a result, efforts to protect political rights will be more difficult than at any time since 1900, when Jim Crow forces seized control of all branches of the North Carolina government.”