Voting rights in North Carolina hinge on the balance of powers between the three branches of government.
For now, North Carolina residents have broad access to voting beyond showing up at the polls on Election Day. They can cast an absentee ballot by mail without having to provide a reason, or vote early in person during a two-week period.
North Carolina Republicans have attempted to pass sweeping changes to election law since they gained control of the state legislature in 2011, but have been widely rebuffed by state and federal courts for targeting Black and Democratic voters for disenfranchisement through restrictions to voting access and gerrymandering. For most of the 2010 decade, North Carolina’s legislature was elected using Republican-drawn legislative maps that state and federal courts later ruled were unconstitutional.
Since Republicans lost super-majority control of the legislature in 2018, their attempts to pass restrictive election laws on party-line votes have been hampered by vetoes from the state’s Democratic governor, Roy Cooper.
When Cooper won the gubernatorial election in 2016, Republicans attempted to shift power away from the executive branch, including by reorganizing state and county boards of elections, a move ultimately blocked by state courts. Since, the executive and legislative branches have wrestled over the authority to represent the state’s interest in election-related litigation and setting emergency rules for running an election.
Now, North Carolina’s Republican legislative leaders are trying to limit the authority of state courts to review federal election laws in a case before the U.S. Supreme Court that could fundamentally shift the way democracy is structured across this country.
Should Speaker of the House Tim Moore and Senate President Pro Tempore Phil Berger win their case, they will have broader authority to pass laws governing how North Carolina runs its federal elections, with fewer checks and balances from the state courts.
Because the case will be decided by the highest court in the country, the decision could affect every state legislature, 30 of which are controlled by Republicans, including swing states such as Michigan, Pennsylvania and Wisconsin, where Democratic governors similarly have blocked voting restrictions adopted by Republican legislatures, and Arizona, Florida and Georgia, which are expected to have closely contested gubernatorial elections this November.
The case, Moore v. Harper, arose out of a lawsuit in state court where Democratic Party-backed groups, such as the National Redistricting Foundation, and pro-democracy groups, such as Common Cause, sued the legislature claiming their redistricted maps for state and federal offices were gerrymandered. The groups argued that the state’s constitution prevented extreme partisan gerrymandering.
In February 2022, the state supreme court agreed. The three Republican justices — North Carolina elects appellate justices in partisan races due to a 2018 law passed by a Republican legislature — dissented, writing the majority “untethers itself from history and case law” in using the state constitution to limit partisan gerrymandering. Two of the seven court seats, both currently held by Democratic justices, are up for election this year.
After the state supreme court’s ruling, the state legislature had to redraw its state House, state Senate and U.S. Congressional districts under the supervision of a three-judge panel in Superior Court. Those judges decided the state districts were acceptable but the congressional map was still gerrymandered, so the court provided its own map for 2022 and said the legislature could redraw the maps for the next election.
Moore and Berger appealed this decision up to the U.S. Supreme Court and relied on an argument called the “independent state legislature theory.” Should at least five justices support the theory and North Carolina’s Republicans win their case, state courts will have less authority to review federal election rules set by state legislatures, though what this would look like in practice is widely variable and depends entirely on the ruling.
In their filing before the U.S. Supreme Court, Moore and Berger argued that state courts should have no role in reviewing election laws for federal elections set by state legislatures, and that those laws should not be subject to gubernatorial veto, either.
That extreme version of the independent state legislature theory would leave only Congress to make federal election law to limit what states could pass, and federal courts to determine if the laws violated the U.S. Constitution.
North Carolina’s constitution would still apply to state voting laws. There could be a scenario in which state legislative districts have to be drawn based on limits to partisan gerrymandering under the state constitution, but federal congressional districts are freely gerrymandered.
There’s also a scenario where state and federal voting rules split, for example if the legislature passes a voting law that is accepted by the federal courts but rejected by state courts. In that instance, voters would have to follow one set of rules to cast a ballot for any local, county or state races and a different set of rules to cast a ballot in federal races.
Both scenarios would mean the party in the legislative majority would have tremendous power to influence federal election outcomes out of North Carolina, but the state legislature would still be fairly up for grabs due to protections over state voting laws from the state constitution.
Should Republicans win a majority on the state supreme court and reverse the decision blocking hyper-partisan gerrymandering, as many state Republicans signaled they would like to do, then even the possibility of keeping a check on federal election law by voting in new state legislators would be made more difficult, if not impossible.
Court rulings, early voting improve access
In their 11 years of controlling North Carolina’s legislature, Republicans have already indicated the election laws they would like to pass: photo voter ID, gerrymandered districts, limits on absentee by mail and early voting, and limits on private funding for election administration.
Many of those attempts to change the law have been blocked by state or federal courts or Cooper’s veto.
Meanwhile, advocacy groups have sued the state to guarantee more access to the vote. In Community Success Initiative v. Moore, advocacy groups are suing to overturn part of the state’s law disenfranchising people convicted of a felony. A superior court judge struck down the requirement that people complete post-release supervision, probation or parole before voting rights are restored. As it stands in September 2022, with the state supreme court waiting to hear an appeal of the case, anyone who is not actively serving a felony sentence inside a jail or a prison is eligible to vote.
In another lawsuit brought by an advocacy group, Disability Rights NC v. North Carolina State Board of Elections, a federal district court judge ruled in July that voters with disabilities can request assistance from anyone they choose, whereas before they were limited by state law to getting assistance from close family members or county boards of elections.
Going into the 2022 midterms, North Carolinians have broad access to the ballot. North Carolina sends out requested absentee-by-mail ballots 60 days before the election. Registered voters can make the no-excuse requests online.
North Carolinians also have access to early in-person voting, by far the most popular option in the state. Early voting begins on Oct. 20 and ends at 3 p.m. on Nov. 5, with sites and schedules set by county boards of elections.
Would-be voters who miss the Oct. 14 voter registration deadline can still register during early voting. Those voters will have to prove their identity with options that include a utility bill, bank statement, paycheck or government-issued ID with a current name and address.
Photo ID is not currently required to cast a ballot in North Carolina. Though the legislature and voters approved a constitutional amendment in 2018 requiring photo ID, a lawsuit in state court is challenging the legitimacy of the amendment because the legislature was unconstitutionally racially gerrymandered when it put it on the ballot. The legislature also passed a law implementing the voter ID law, and that too is blocked by a state court injunction and is the subject of a related federal case.
North Carolina’s laws allowing by-mail and early voting, collectively called “absentee voting,” have slowly broadened access since the late 1970s, with significant expansions to in-person early voting in 2001 and 2007. Though the Republican-controlled state legislature temporarily limited the early in-person option through 2013 legislation, that was ultimately blocked by federal courts and the previous standards were reapplied.
This article first appeared on Center for Public Integrity and is republished here under a Creative Commons license.