A Brewing Constitutional Crisis

October 30, 2023


  • Redrawing North Carolina’s legislative maps is an open violation of the state constitution
  • Republican legislative and judicial figures have collaborated to cripple basic judicial oversight
  • North Carolina’s separation of powers has substantially diminished


North Carolina is headed toward a full-blown state constitutional crisis.

Republican leaders of our state legislature and judiciary, through a pattern of recent acts, have begun to cripple the state’s basic separation of powers, independent judiciary, and constitutional norms. These pillars of (lower-case “R”) republican governance are part of the foundation of American-style democracy that most people take for granted. Yet those pillars are being steadily dismantled through a coordinated strategy focused on curbing the will of North Carolina’s voters in favor of one-party rule.

These are very serious charges, but they are borne out by an equally serious series of actions, in which Republican legislative and judicial figures have collaborated on a shared goal of advancing partisan political power.

Pro-gerrymandering judicial activism

Last week’s redraw of North Carolina’s legislative maps is patently unconstitutional.

The North Carolina State Constitution is very clear on the topic of redistricting: once “established,” election maps may not be redrawn mid-decade:

Article II, Section 3, Subsection 4: When established, the senate districts and the apportionment of Senators shall remain unaltered until the return of another decennial census of population taken by order of Congress.

Article II, Section 5, Subsection 4: When established, the representative districts and the apportionment of Representatives shall remain unaltered until the return of another decennial census of population taken by order of Congress.

Historically, of course, mid-decade redistricting has occurred, when so ordered by a court of law when the maps enacted violate either the state or federal constitution. This happened multiple times throughout the 2000s and the 2010s, but always on the basis that the maps themselves violated the state or federal constitution. That was exactly the case in February of 2022, when the North Carolina Supreme Court struck down the legislature’s proposed election map as a partisan gerrymander. (See Carolina Forward’s own map analysis.)

This pattern changed in April of 2023. In the 2022 elections, two new Republican judges (Richard Dietz and Trey Allen) won their elections over the Democratic incumbents, Justices Lucy Inman and Sam Ervin (respectively). This flipped partisan control of the North Carolina Supreme court from 4 Democrats and 3 Republicans to 5 Republicans and 2 Democrats. The new Republican majority wasted little time. The ink was barely dry on their swearing-in when the court’s new Republican majority took an extraordinary action: they offered their Republican colleagues in the legislature a do-over of their 2022 hearing on the election maps.

Do-overs, particularly without any change in the relevant facts of a case, are not common in the American judicial system. In fact, the only change in circumstances was partisan control of the North Carolina Supreme Court itself. Yet based on that fact alone, the new court nevertheless overturned the court’s own decision from just 15 months earlier striking down the gerrymandered maps, and cleared the way for the legislature to re-draw – and more heavily gerrymander – them.

This act was plainly unconstitutional in two ways:

  1. The 2023 court did not find that the 2022 maps (Congressional and legislative) were, themselves, actually unconstitutional in any way. Perversely, the court seemed to suggest that the maps were not gerrymandered enough.
  2. Nor did it find that the court’s order striking them down was, itself, unconstitutional – they disagreed only with the prior court’s assessment of facts, which is hardly unusual.

The newly seated Republican supreme court thus engaged in a breathtaking leap of judicial activism that hardly bothers with legal legitimacy. Republican justices simply wanted Republican maps – so they delivered them to their co-partisans, hardly bothering with a fig leaf excuse as a cover story.

Overturning the North Carolina Supreme Court’s 2022 decision was unconstitutional, and the legislature’s redrawing of those election maps is unconstitutional yet again. We are truly in uncharted waters, when justices of one party decide that our state’s constitution is a mere suggestion, and not the law.

Crippling judicial review

The 2023 North Carolina state budget will long be remembered for its list of horrors. But one widely-overlooked provision is particularly troubling, when seen in the context of the broader attack on North Carolina’s judicial independence: the legislature’s newly appointed judges, and the new authority they will have to provide judicial oversight to the legislature.

The new state budget laid out a brand new system for hearing any legal challenges to acts of the legislature in state court (see page 422, line 29 of the new state budget). Those challenges will now automatically be heard or transferred to Superior Court of Wake County, and heard by a special three-judge panel, personally selected by Republican Chief Justice Paul Newby.

Moreover, the new state budget also created 10 new “special” Superior Court judgeships, all appointed by the partisan leaders of the legislature. This is a major departure, since virtually all other traditional judges in North Carolina are elected by voters. Those 10 new “special” judges will be eligible to serve on those panels hearing challenges to the legislature’s acts.

Among the first “special” Superior Court judges appointed by Republican leaders are Clayton Somers, Republican House Speaker Tim Moore’s former chief of staff, and Beth Freshwater Smith, a district court judge who ran a failed hard-right candidacy for the court of appeals, as well as other reliable Republican activists.

Citizens wanting to challenge the legal validity of acts of their state legislature have little hope of a fair hearing with judges such as these. It will literally be the home team choosing a player off its own bench to serve as umpire.

Whittling down ethical norms

The increasingly overt political activism, and even harassment, by Republican members of the North Carolina Supreme Court have drawn significant scrutiny:

  • Republican Justice Phil Berger Jr., son of Republican Senate Leader Phil Berger, has refused to recuse himself even from cases in which his own father is a defendant, a clear conflict of interest.
  • Republican Justice Tamara Barringer refused to recuse herself from hearing a case on the legality of a law she personally voted for while a member of the State Senate, a textbook case of partiality.
  • The Judicial Standards Commission, largely controlled by Republican Chief Justice Paul Newby, is “investigating” Democratic Justice Anita Earls over general comments she made about diversity in the legal field.
  • Republican Justice Jefferson Griffin has used his court opinions to opine that racism simply does not exist in our criminal justice system, drawing rare rebukes from other attorneys who know better.

In these and many other ways, right-wing judicial activism is steadily turning North Carolina’s court system into a body more like the legislature, complete with bombastic personal politics, political theater manufactured for voters, and active, extralegal coordination between the branches for purely partisan aims.

This state of affairs is bad for justice, and bad for the people of North Carolina. It erodes confidence in our independent judicial system primarily because that’s what it is intended to do. Yet voters alone can change this trajectory. It will be up to them, in both legislative and judicial elections, to decide if a robust, independent and legitimate judiciary is worth saving – or if it’s just too much trouble.

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