Hogan Lovells, Common Cause NC, and Southern Coalition for Social Justice file brief opposing request for Supreme Court to review North Carolina’s voting map
Washington, D.C., 20 May 2022 — A state legislature cannot make elections and voting rules with impunity, according to a new filing which asks the U.S. Supreme Court to reject legislators’ attempt to overturn the North Carolina Supreme Court's decision striking down their gerrymandered Congressional map and putting in place an interim Congressional map for the 2022 elections.
On Friday, Southern Coalition for Social Justice and pro bono counsel Hogan Lovells, on behalf of plaintiff Common Cause NC, filed a brief in opposition to North Carolina lawmakers’ request for the high court to review the constitutionality of a special-master drawn voting map. Lawmakers’ petition relies on a dangerous and unprecedented “independent state legislature theory,” which, if accepted, would give the North Carolina General Assembly unchecked power to dramatically upend legal protections governing voting rights and redistricting. The legal filings come amidst nationwide concerns that the Supreme Court will overturn Roe v. Wade this summer, before hearing arguments this October in Milligan v. Merrill, a case challenging Section 2 of the Voting Rights Act.
“The Court should refuse to give the Legislature a free pass to manipulate Congressional voting districts to entrench their own power and in violation of North Carolinians' state Constitutional rights,” said Hilary Harris Klein, Senior Counsel for Voting Rights at the Southern Coalition for Social Justice. “North Carolinians deserve responsive and fair maps. If lawmakers get their way, it will have devastating effects on elections for years to come, especially for Black voters.”
The move from North Carolina legislators came after the Wake County Superior Court struck down lawmakers’ own court-ordered remedial Congressional map in a Feb. 23 order in Harper et al. v. Hall et al, and instead enacted a Special Master-drawn “interim” map. The trial court accepted the legislature’s remedial state House and Senate maps over objections from Common Cause that these maps still unlawfully diminish the ability of Black voters in Eastern North Carolina to elect candidates of their choice. The North Carolina Supreme Court denied requests from Plaintiffs and Defendants for emergency stays of their remedial order, allowing the legislature’s remedial state House and Senate maps to go forward, as well as the “interim” Congressional map put in place by the trial court.
“Politicians in the legislature illegally manipulated North Carolina’s voting maps and lost their case in state court. Instead of respecting the court’s ruling, these same partisan legislators are now pursuing a reckless ploy that could jeopardize freedoms guaranteed to every North Carolinian in our state Constitution,” said Bob Phillips, Executive Director of Common Cause NC. “These politicians want to impose gerrymandered districts upon the people of North Carolina and claim virtually limitless, unchecked authority over our state’s elections. The U.S. Supreme Court should emphatically reject the legislative defendants’ radical attempt to undermine our constitutional rights as North Carolinians. Rather than trying to grab unconstitutional political power, legislators should focus on working for the people of our state.”
“Our opponents are asking the U.S. Supreme Court to hold that North Carolina courts cannot review North Carolina laws for compliance with the state’s own Constitution,” said Hogan Lovells partner Neal Katyal. “That is a dangerous and unprecedented theory that has no grounding in constitutional law. It runs counter to a century’s worth of the U.S. Supreme Court’s precedent. And adopting the theory would inject chaos into the electoral system. The U.S. Supreme Court should reject this request.”
Hogan Lovells partner Tom Boer added: “We value the opportunity to represent Common Cause and its members, and to work side-by-side with counsel at the Southern Coalition for Social Justice, in our continuing efforts to ensure that all elections in North Carolina proceed in accord with state constitutional protections and that every individual’s vote–regardless of race or political belief–counts equally.”
No matter what the Court decides, lawmakers will begin drawing a new Congressional map again in 2023. The expert-drawn map is “interim,” in place only for the 2022 election.
In addition to partners Neal Katyal, Jessica Ellsworth (both Washington, D.C.) and Tom Boer (San Francisco), the Hogan Lovells team on the brief included associates Olivia Molodanof (San Francisco) and Michael West (Washington, D.C.), and law clerk Eric Roytman (Washington, D.C.). The Hogan Lovells team on the case also includes partner David Dunn (New York), associates Jack Shaked and Ian Lewis-Slammon (both New York), and law clerk Christine Wang (Silicon Valley).
Click here to read plaintiff Common Cause’s opposition to lawmakers’ request for Certiorari to the U.S. Supreme Court.
Read more about the case here and here.