3 Ways the 2024 Elections Will Look Different in North Carolina

Welcome to Family Policy Matters, an engaging and informative partner equipped to be a voice of persuasion for family values in your public integrity institution at the John Locke Foundation level where he focuses on government s upcoming elections. Dr. Andy Jackson, welcome back to Family Policy Matters. Thank you for having me. Family Policy Matters.

Thank you for having me. For some people who might not have been following 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. The North Carolina Supreme Court after the 2022 elections went from a 4-3 Democratic majority to a 5-2 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 on 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 re-hearings of those cases this spring, in which case the new majority overturned those results that the court had last fall. Those of us here at the Family Policy Council were 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 mean, I thought, you know, these courts were supposed to function differently than this. Well, there are competing judicial views, you know, traditionally what we call 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, you know, 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 a 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.

Okay. And I think this is so important for us to understand. Let's look at some of the cases that really highlight 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? The question was basically over a voter ID implementation law that the general assembly passed in late 2018, right after voters approved the 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. Okay. And that ruling goes into effect when?

It goes to an 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. 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's that work? 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 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 presidential intent in that there's no, you know, intent of racial discrimination, no proven effect of 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. 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? 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 had registered in the state within 90 days before the election. You can use your passport or a 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. You're listening to Family Policy Matters, a weekly radio show and podcast of the North Carolina Family Policy Council. This is just one of the many ways NC Family works to educate and inform citizens across North Carolina about policy issues that impact North Carolina families.

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We'd also love for you to follow us on Facebook, Instagram, and Twitter. All right, well, let's talk about another case that the court revisited, Harper v. Hall, having to do with the North Carolina's long redistricting saga. Tell us what happened with this one. Harper v. Hall here was 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 another party, are non-justicable 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 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 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. So there are also federal cases challenging North Carolina's redistricting plan.

Does this have any effect on those? 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, you are 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. So what does this ruling mean for our next elections? 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 a hundred percent 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 super majority in the Senate, almost in the house. Uh, and now they have a super majority in the house, but those kind 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 formally did, I think it'll still be difficult for them to be able to maintain that super majority just because of those environmental factors.

All right. 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? The court ruling in 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 were 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 going to have to wait until they complete all of their sentences before they register to vote.

Okay. So it's not as if they can't ever vote again. In North Carolina, your right to vote is automatically restored when you complete all of your sentences.

Yes. Are these rulings the final say for these cases or are we going to keep seeing these things pop up through the years, you think? 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 for 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've already have established precedent in the Supreme Court. So I don't expect the exact same kind of lawsuits to come up. However, like I said, there's probably going to be some pivots. The voter ID is probably with a 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. Okay. 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? Go to our website, it's www.johnlocke.org, and that is L-O-C-K-E dot org, or it's probably even easier, just do a web search of John Locke Foundation. All right.

Dr. Andy Jackson with the John Locke Foundation. Thanks so much for being with us today on Family Policy Matters. You've been listening to Family Policy Matters. We hope you enjoyed the program and plan to tune in again next week to listen to the show online and to learn more about NC Family's work to inform, encourage and inspire families across North Carolina, go to our website at NC family.org, that's NC family dot O-R-G. Thanks again for listening and may God bless you and your family.