NC Family Staff | May 27, 2023 | SHARE: 
The North Carolina Supreme Court recently reversed decisions on three key cases that will impact the elections coming up in 2024. These issues include the implementation of voter ID, redistricting, and voting rights for felons. The nuances can get complicated, but each are critical issues that can’t be ignored.
This week on Family Policy Matters, host Traci DeVette Griggs welcomes Dr. Andy Jackson, Director of the Civitas Center for Public Integrity at the John Locke Foundation, to discuss the North Carolina Supreme Court’s recent reversals and the implications they will have for the 2024 elections.
Editorial Correction: In the interview, Dr. Jackson shares that, “There was a window of about six or eight months where people convicted of felonies who are serving on probation or parole could register, those are kind of grandfathered in, but other folks no longer can register to vote.” That was true after a lower court ruling a couple of years ago. However, after the NC Supreme Court ruling, the State Board of Elections said that those still serving their felon sentences who had registered to vote would have their registrations canceled.
TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. North Carolina’s Supreme Court has recently issued several rulings that will have an immediate and lasting impression on elections in North Carolina. Is this good news or bad? Well, Dr. Andy Jackson is director of the Civitas Center for Public Integrity at the John Locke Foundation, where he focuses on government compliance with the law, particularly regarding election policy. He joins us today to discuss these recent rulings by North Carolina Supreme Court and how they will impact North Carolina’s upcoming elections. Dr. Andy Jackson, welcome back to Family Policy Matters.
DR. ANDY JACKSON: Thank you for having me.
TRACI DEVETTE GRIGGS: For some people who might not have been following the events surrounding the North Carolina Supreme Court, tell us what happened in the past election that changed the makeup of the court and why this was important.
DR. ANDY JACKSON: The North Carolina Supreme Court after the 2022 elections went from a four three Democratic majority to a five two Republican majority, there were two seats in the Supreme Court that were up that year, Republicans won both of those. And that had a major impact in a couple of ways. The most obvious is that it changed the composition of the court and how they’re likely to rule, but also partially in anticipation. And partially as a result of that election, the old majority of the Supreme Court sped up how they were going to consider some cases, went out of the normal judicial procedure, and heard those cases earlier than they normally would have been. And this set of rehearing of those cases this spring, in which case the new majority overturned those results that the court had last fall.
TRACI DEVETTE GRIGGS: Those of us here at the Family Policy Council, we’re constantly reminding people that these judicial elections are very important. Don’t overlook them. But should there be this jerking back and forth when one party takes control? I thought, you know, these courts were supposed to function differently than this.
DR. ANDY JACKSON: Well, there are competing judicial views, traditionally, what we call a living Constitution view, in which case, you can kind of interpret the Constitution in a way that matches what you believe to be current societal norms. There’s another view, which is your more traditional textualist view, which means you should try to follow the Constitution as it was written by the people who wrote it. And these are broad interpretations at both the federal level and the state level, it just so happens that the more living Constitution folks tend to be Democrats, and the more textualist or strict constructionist folks happen to be Republicans. So it’s normal. If you’re going to change the composition of the court through elections, which we have in North Carolina, when you get justices from different parties, they’re going to have different interpretations of the Constitution. And we see that with appointed courts as well. This is the reason that fights over judicial appointments at the federal level are such a big deal, because both sides want to have people that interpret the Constitution in their preferred way in those positions of power.
TRACI DEVETTE GRIGGS: Okay. And I think this is so important for us to understand, let’s look at some of the cases that really highlights some of these differences. I think it’s really interesting. So start with Holmes v Moore what was the question the court was considering in this case and how did it rule on that?
DR. ANDY JACKSON: The question was basically over a voter ID implementation law that the General Assembly passed in late 2018, right after voters approved a constitutional amendment for voter ID that had been struck down by the Supreme Court last year. This year, the Supreme Court reversed that decision in the same case, and they approved the implementation law after the amendment. And so now Voter ID is going to be able to continue.
TRACI DEVETTE GRIGGS: Okay. And that ruling goes into effect when?
DR. ANDY JACKSON: It goes into effect immediately. The state board of elections is already preparing and trying to help the county boards get ready for implementing voter ID and municipal elections this year.
TRACI DEVETTE GRIGGS: So explain how a constitutional amendment like this that was approved by both the North Carolina legislature and the voters can then be challenged in the courts. How does that work?
DR. ANDY JACKSON: Well, there’s two parts of that one. One is, in the case that we just discussed Holmes v Moore, that was a challenge to the law that implemented the constitutional amendment. The constitutional amendment sets up a general principle. And then the General Assembly has to pass a law that actually, you know, makes the voter ID happen in a practical way. And so this particular lawsuit was challenging the implementation law. And it’s basically saying that even though it is implementing something that’s approved by the Constitution through, you know, voters, putting it in, the way it’s being implemented violates other parts of the Constitution. And so the Supreme Court this time around, dismissed that claim. They said, there wasn’t any real proof that there was prejudicial intent, and that there’s no, you know, intent of racial discrimination, no proven effective racial discrimination through the voter ID law, there was a separate case that they were challenging the voter ID amendment itself, and that one is still in the courts. But even if that case overturns the amendment, which I think is unlikely at this point, the law itself is independent of the amendment. So we’ll still have voter ID in North Carolina.
TRACI DEVETTE GRIGGS: What do we know about what kinds of IDs that people will need to show and where they will go to get those? Has all that been worked out?
DR. ANDY JACKSON: That was worked out when ID was originally passed, it’s in the bill. And so the state board of elections and county boards already have a full list, it’s actually a pretty extensive list. I’ll go through some of them, most obvious is your North Carolina driver’s license, you can actually use an out of state driver’s license, as long as you have registered in the state within 90 days before the election, you can use your passport or passport card if you have one of those. If you don’t know how to drive, you can still get an ID from the Department of Motor Vehicles. That’s $14. There’s tribal IDs, military IDs, state employee IDs, student IDs. So there’s a host of different IDs. And if you don’t have any of those, you can actually go to a county board of elections and get a free ID from them.
TRACI DEVETTE GRIGGS: All right, well, let’s talk about another case that the court revisited Harper V Hall, having to do with North Carolina’s long redistricting saga. Tell us what happened with this one.
DR. ANDY JACKSON: Harper V. Hall here is basically the same thing that in a federal court case a few years ago, but it basically said that claims of partisan gerrymandering where you’re writing districts to advantage one party over anothe r party are nonjusticiable political questions. It basically said that the business of drawing districts was put in the Constitution for the General Assembly, not the courts. And unless those districts are drawn in a way that violates the Constitution, and there are very specific rules that you have to follow for drawing districts in North Carolina. But unless it violates one of those, then it’s not really the position of the court to decide, you know what those districts should look like. This one was specifically on party. This is kind of a new territory, because previous court cases had always said that the general assembly can consider partisanship, basically it’s not really the place of the court to judge, you know, political gerrymandering. Previous court cases had overturned what we call racial gerrymandering, where you’re drawing districts to advantage one party over another party, but had said that this is not really in our purview to handle political gerrymandering questions that was changed a couple of years ago, in a court case, Harper V. Lewis in a lower court, and then again, in Harper V. Hall this time where they said, well, political gerrymandering is actually unconstitutional for a host of reasons. And again, that was overturned by the new Supreme Court two weeks ago.
TRACI DEVETTE GRIGGS: So there are also federal cases challenging North Carolina’s redistricting plan. Does this have any effect on those?
DR. ANDY JACKSON: Probably not. We had a case in 2019, Common Cause V. Rucho, which basically said, at the federal level claims of partisan gerrymandering are not justiciable, they can’t really be considered by the courts. And so we’re not going to have that. We also have a case, which is Moore V. Harper, where the Supreme Court is supposed to hear a challenge to the Harper V Moore lawsuit in North Carolina over the so called independent legislature theory that is basically saying that courts have no place. This ruling, and I know this is getting complicated, in Harper V Moore, will probably moot Moore V. Harper, so there’s not going to be that test at the federal level. So right now, we don’t really have any challenges in North Carolina at the federal level on political gerrymandering claims, but we will almost certainly see racial gerrymandering claims. There are plaintiffs that have equated those two, they say, Well, if you’re partisan gerrymandering, your de facto racial gerrymandering, as well, because of the different voting patterns of folks based on their race, so we’re almost certainly going to see those claims. Right now, they don’t exist, but I’m sure we’re going to see them after maps are drawn later this year.
TRACI DEVETTE GRIGGS: So what does this ruling mean for our next elections?
DR. ANDY JACKSON: I expect Republicans will probably have a small advantage with the new maps compared to the maps that were drawn, both the original maps drawn by the General Assembly and also the ones imposed by the court, but it’ll be a small one. Would it be enough for them to retain the current super majorities they have? I’m not 100% sure, because this is a presidential election year, coming up in 2024. So turnout is going to be high, Democrats are going to get their voters. Republicans had kind of a red wave in North Carolina, they won in 2022. They won every statewide race, they got a supermajority in the Senate, almost in the House, and now they have a supermajority in the House. But those kinds of outside environmental factors, you know, affect elections, a lot more than people give credit for. So even with districts that may advantage Republicans a little bit more than they formerly did, I think it’ll still be difficult for them to be able to maintain that supermajority just because of those environmental factors.
TRACI DEVETTE GRIGGS: Alright, so the final case, we want to talk about, the North Carolina Supreme Court took up the issue of whether felons can vote. Can you talk about the reason that this was brought up in the first place? And what was the court’s ruling?
DR. ANDY JACKSON: The court ruling on that one was that felons on parole and probation, that was the question. So you know, if you’re actively serving prison time, before or after, you still can’t vote. But if you’re on probation, or parole, and you’re serving a felon sentence in that way, you can no longer register to vote in North Carolina. There was a window of about six or eight months where people convicted of felonies who are serving on probation or parole could register, those are kind of grandfathered in, but other folks no longer can register to vote. And so that’s going to impact, going down the line, any new people that are coming out on probation or parole, they’re gonna have to wait until they complete all of their sentences before they register to vote.
TRACI DEVETTE GRIGGS: Okay, so it’s not as if they can’t ever vote again.
DR. ANDY JACKSON: In North Carolina, your right to vote is automatically restored when you complete all of your sentence. Yes.
TRACI DEVETTE GRIGGS: Are these rulings the final say for these cases? Are we going to keep seeing these things pop up through the years, do you think?
DR. ANDY JACKSON: On these particular cases, all three were dismissed with prejudice, which means that the plaintiffs can’t bring them up again, of course, that wouldn’t stop the plaintiffs from finding some new reason to sue, or if new plaintiffs come up, they could sue. But these cases themselves are gone, and based on these decisions, it’s going to be difficult for groups to justify having the same kind of lawsuits if they already have established precedent in the Supreme Court. So I don’t expect the exact same kinds of lawsuits to come up. However, like I said, there’s probably going to be some pivots, the voter ID is probably with the stay, the current felon disenfranchisement law is probably with the stay for the foreseeable future. And we will see different iterations of gerrymandering claims probably based on race rather than party ID.
TRACI DEVETTE GRIGGS: Well, we’re just about out of time. Before we go, Andy Jackson, where can our listeners go to learn more about these cases and follow all the good work that you and your colleagues are doing at the John Locke Foundation?
DR. ANDY JACKSON: Go to our website it’s www John Locke and that is LOCKE.org. Or is probably even easier, just do a web search of John Locke Foundation.
TRACI DEVETTE GRIGGS: All right, Dr. Andy Jackson with the John Locke Foundation. Thanks so much for being with us today on Family Policy Matters.
