Harper v. Hall

380 N.C. 317

868 S.E.2d 499

Rebecca HARPER; Amy Clare Oseroff; Donald Rumph; John Anthony Balla; Richard R. Crews; Lily Nicole Quick; Gettys Cohen, Jr. ; Shawn Rush; Jackson Thomas Dunn, Jr.; Mark S. Peters; Kathleen Barnes; Virginia Walters Brien; and David Dwight Brown

v.Representative Destin HALL, in his official capacity as Chair of the House Standing Committee on Redistricting; Senator Warren Daniel, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; Senator Ralph Hise, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; Senator Paul Newton, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; Speaker of the North Carolina House of Representatives, Timothy K. Moore; President Pro Tempore of the North Carolina Senate, Philip E. Berger; the North Carolina State Board of Elections; and Damon Circosta, in his official capacity

North Carolina League of Conservation Voters, Inc.; Henry M. Michaux, Jr.; Dandrielle Lewis; Timothy Chartier; Talia Fernós; Katherine Newhall; R. Jason Parsley; Edna Scott; Roberta Scott; Yvette Roberts; Jereann King Johnson; Reverend Reginald Wells; Yarbrough Williams, Jr.; Reverend Deloris L. Jerman; Viola Ryals Figueroa; and Cosmos George

v.Representative Destin Hall, in his official capacity as Chair of the House Standing Committee on Redistricting; Senator Warren Daniel, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; Senator Ralph E. Hise, Jr., in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; Senator Paul Newton, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; Representative Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives; Senator Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate; The State of North Carolina; The North Carolina State Board of Elections; Damon Circosta, in his official capacity as Chairman of the North Carolina State Board of Elections; Stella Anderson, in her official capacity as Secretary of the North Carolina State Board of Elections; Jeff Carmon III, in his official capacity as Member of the North Carolina State Board of Elections; Stacy Eggers IV, in his official capacity as Member of the North Carolina State Board of Elections; Tommy Tucker, in his official capacity as Member of the North Carolina State Board of Elections; and Karen Brinson Bell, in her official capacity as Executive Director of the North Carolina State Board of Elections

No. 413PA21

Supreme Court of North Carolina.

Filed February 14, 2022

Patterson Harkavy LLP, by Narendra K. Ghosh, Chapel Hill, Burton Craige, Raleigh, and Paul E. Smith, Chapel Hill; Elias Law Group LLP, by Abha Khanna, Lalitha D. Madduri, Jacob D. Shelly, and Graham W. White ; and Arnold and Porter Kaye Scholer LLP, by Elisabeth S. Theodore, R. Stanton Jones, and Samuel F. Callahan, for Harper plaintiff-appellants.

Robinson, Bradshaw & Hinson, P.A., by Stephen D. Feldman, Raleigh, John R. Wester, Adam K. Doerr, Charlotte, and Erik R. Zimmerman, Chapel Hill; and Jenner & Block LLP, by Sam Hirsch, Jessica Ring Amunson, Zachary C. Schauf, Karthik P. Reddy, and Urja Mittal, for North Carolina League of Conservation Voters, Inc. plaintiff-appellants.

Southern Coalition for Social Justice, by Hilary H. Klein, Allison J. Riggs, Mitchell Brown, Katelin Kaiser, Jeffrey Loperfido, and Noor Taj ; and Hogan Lovells US LLP, by J. Tom Boer and Olivia T. Molodanof, for Common Cause plaintiff-appellant.

North Carolina Department of Justice, Raleigh, by Amar Majmundar, Senior Deputy Attorney General, and Terence Steed, Mary Carla Babb, and Stephanie A. Brennan, Special Deputy Attorneys General, for State defendant-appellees.

Nelson Mullins Riley & Scarborough, LLP, by Phillip J. Strach, Alyssa M. Riggins, John Branch, Raleigh, and Thomas A. Farr ; and Baker & Hostetler LLP, by Katherine L. McKnight and E. Mark Braden, for Legislative Defendants defendant-appellees.

Abraham Rubert-Schewel, Chris Lamar, and Orion de Nevers, for Campaign Legal Center, amicus curiae.

Haynsworth Sinkler Boyd, P.A., by William C. McKinney, Jonathan D. Klett and Sara A. Sykes ; and States United Democracy Center, by Christine P. Sun and Ranjana Natarajan, for former governors, amici curiae.

Poyner Spruill LLP, by Edwin M. Speas Jr. and Caroline P. Mackie, Raleigh, for Buncombe County Board of Commissioners, amicus curiae.

Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, and Zachary W. Ezor, Solicitor General Fellow, for Governor Roy A. Cooper II and Attorney General Joshua H. Stein, amici curiae.

Phelps Dunbar LLP, Raleigh, by Nathan A. Huff and Jared M. Burtner, for National Republican Congressional Committee, amicus curiae.

Forward Justice, by Kathleen E. Roblez, Caitlin A. Swain, Daryl V. Atkinson, Ashley M. Mitchell, and Aviance Brown ; and Irving Joyner, Durham, for NC NAACP, amicus curiae.

Poyner Spruill LLP, Raleigh, by Caroline P. Mackie, for Professor Charles Fried, amicus curiae.

HUDSON, Justice.

¶ 1 Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? We hold that our constitution's Declaration of Rights guarantees the equal power of each person's voice in our government through voting in elections that matter.

¶ 2 In North Carolina, we have long understood that our constitution's promise that "[a]ll elections shall be free" means that every vote must count equally. N.C. Const. art. I, § 10. As early as 1875, this Court declared it "too plain for argument" that the General Assembly's malapportionment of election districts "is a plain violation of fundamental principles."¹ People ex rel. Van Bokkelen, v. Canaday, 73 N.C. 198, 225 (1875). Likewise, this Court has previously held that judicial review was appropriate in legislative redistricting cases to enforce the requirements of the state constitution, even when doing so means interpreting state constitutional provisions more expansively than their federal counterparts. See Stephenson v. Bartlett , 355 N.C. 354, 379–82, 562 S.E.2d 377 (2002).

¶ 3 "A system of fair elections is foundational to self-government." Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 376 N.C. 558, 2021-NCSC-6, ¶ 86, 853 S.E.2d 698 (Newby, C.J., concurring in the result). While partisan gerrymandering is not a new tool, modern technologies enable mapmakers to achieve extremes of imbalance that, "with almost surgical precision,"² undermine our constitutional system of government.³ Indeed, the programs and algorithms now available for drawing electoral districts have become so sophisticated that it is possible to implement extreme and durable partisan gerrymanders that can enable one party to effectively guarantee itself a supermajority for an entire decade, even as electoral conditions change and voter preferences shift. Fortunately, the technology that makes such extreme gerrymanders possible likewise makes it possible to reliably evaluate the partisan asymmetry of such plans and review the extent to which they depart from and subordinate traditional neutral redistricting principles.

¶ 4 Partisan gerrymandering creates the same harm as malapportionment, which has previously been held to violate the state constitution: some peoples’ votes have more power than others. But a legislative body can only reflect the will of the people if it is elected from districts that provide one person's vote with substantially the same power as every other person's vote. In North Carolina, a state without a citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments, it is no answer to say that responsibility for addressing partisan gerrymandering is in the hands of the people, when they are represented by legislators who are able to entrench themselves by manipulating the very democratic process from which they derive their constitutional authority. Accordingly, the only way that partisan gerrymandering can be addressed is through the courts, the branch which has been tasked with authoritatively interpreting and enforcing the North Carolina Constitution.

¶ 5 Here, the General Assembly enacted districting maps for the United State Congress, the North Carolina House of Representatives, and the North Carolina Senate that subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage by diluting the power of certain people's votes.⁴ Despite finding that these maps were "extreme partisan outliers[,]" "highly non-responsive" to the will of the people, and "incompatible with democratic principles[,]" the three-judge panel below allowed the maps to stand because it concluded that judicial action "would be usurping the political power and prerogatives" of the General Assembly.

¶ 6 We emphatically disagree. Although the task of redistricting is primarily delegated to the legislature, it must be performed "in conformity with the State Constitution." Stephenson , 355 N.C. at 371, 562 S.E.2d 377. It is thus the solemn duty of this Court to review the legislature's work to ensure such conformity using the available judicially manageable standards. We will not abdicate this duty by "condemn[ing] complaints about districting to echo into a void." Rucho v. Common Cause , ––– U.S....