RALEIGH, N.C. (WGHP) – In a terse, one-sentence ruling issued by Associate Justice Trey Allen, the North Carolina Supreme Court on Thursday said it was denying an amicus brief submitted by Gov. Roy Cooper and Attorney General Josh Stein in the redistricting case the court will rehear next week.

You may recall that last month the court announced that, in a 5-2 decision along party lines, it would grant hearings brought by North Carolina House Speaker Tim Moore (R-Cleveland) for the court to reverse decisions it made in December on a voter ID law and electoral district maps for Congress and the General Assembly.

Associate Justice Trey Allen’s response to a motion for an amicus brief filed by Gov. Roy Cooper and Attorney General Josh Stein.

Moore filed that request on Jan. 20, claiming in his brief that “errors” and “judicial activism” had led the court to rule against the legislators’ work on both issues.
The state Supreme Court on Dec. 16 had struck down the constitutional amendment voters passed in 2018 to require a photo identification be shown before voting and upheld its earlier judgment that political districts can’t be gerrymandered to maintain political power.

NC Supreme Court Justice Trey Allen

The court was swung in November from a 4-3 Democratic majority to a 5-2 Republican control. Both decisions the court announced in December were along that Democratic majority.

The hearing on the redistricting case is scheduled for this week, and by a deadline set of March 3 “plaintiffs and voting rights advocates” could file motions in Harper et al vs. Hall et al.

An amicus – or “friend” – brief is a memorandum in motion form designed to reinforce one side or another in court matters. They are common in appellate cases up and down the spectrum.

Cooper and Stein had filed their brief by the deadline, but Allen cited Rule 31 Clause D in denying the motion.

That clause says in part: “(d)Procedure When Granted. Upon grant of the petition the clerk shall forthwith notify the parties that the petition has been granted. The case will be reconsidered solely upon the record on appeal, the petition to rehear, new briefs of both parties, and the oral argument if one has been ordered by the court. The briefs shall be addressed solely to the points specified in the order granting the petition to rehear.”

Legal observers suggested that the phrase “new briefs from both parties” limits the scope to plaintiffs – Rebecca Harper, Common Cause and the North Carolina League for Conservation Voters – or defendant, which is Rep. Destin Hall as the chair of redistricting for the General Assembly.

The amicus motion

NC Gov. Governor Roy Cooper (Photo by Allison Joyce/Getty Images)
NC Attorney General Josh Stein (AP)

In their 70 pages filed last month, Cooper and Stein, the Democrat completing his second term as governor and one of those who would like to succeed him, urged the court to leave in place its finding that maps drawn by the General Assembly for the U.S House and the General Assembly constituted partisan gerrymanders. They cited political changes as the reason for the rehearing.

“The Court should reject this shameless partisan effort to overturn Supreme Court decisions that protect the ability of voters to fairly select their representatives in our democracy,” Cooper said of the brief. “Nothing has changed in this case but the partisan composition of the Court. The meaning of our Constitution does not change when the justices do.”

Said Stein: “There is nothing more fundamental to our democracy than the right to vote and to have that vote matter. Partisan gerrymandering was wrong and unlawful when the Supreme Court ruled on this case last year, and it remains wrong and unlawful today. North Carolina’s constitution makes clear that all of the power belongs to the people, and that voters should choose their representatives, not the other way around. I urge the Court to not take the extraordinary step of overruling its previous decision and instead respect the rule of law by reaffirming that partisan gerrymandering violates our constitution and undermines our democracy.”

Rehearings are rare

When the rehearing was announced, one of the two remaining Democratic justices, Anita Earls, wrote in a dissent that this was only the second time in 30 years that the Supreme Court had reheard cases on which it had ruled. Earls said this move was a “display of raw partisanship.

NC Supreme Court Associate Justice Anita Earls

“The majority’s order fails to acknowledge the radical break with 205 years of history that the decision to rehear this case represents,” she wrote. “It has long been the practice of this 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 rehearing 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. Moreover, this Court has respected the idea that “even if judges have ideological preferences and methodological differences . . . partisan loyalties [should] fade away after investiture to reveal a judiciary of men and women bound together by collegiality norms and the rule of law.”