The N.C. Supreme Court’s Power Play

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On Friday, the North Carolina Supreme Court’s Republican majority decided a trio of voting rights cases—political gerrymandering, voter ID, and felon enfranchisement—in legislative Republicans’ favor. The rulings were expected, but that didn’t make them less momentous.

House Speaker Tim Moore declared victory in a statement: “The decisions handed down today by the N.C. Supreme Court have ensured that our constitution and the will of the people of North Carolina are honored.” 

Democrats pointed to the racial optics of five white justices ruling against civil rights organizations, while the two Black justices dissented. 

“There’s never been a single-day rollback of racial progress as there was today in North Carolina,” tweeted state Democratic Party chair Anderson Clayton. (Though an argument could be made for August 2, 1900, when the state established a literacy test and poll tax.) 

As the dust settles, three things have become clear. 

1. The General Assembly can do whatever it wants.

“The people act and decide policy matters through their representatives in the General Assembly,” Chief Justice Paul Newby wrote in the gerrymandering decision. “We are designed to be a government of the people, not of the judges.”

The conservatives justified overturning decisions the court made last year—a norm-shattering move—by arguing that the previous Democratic majority had improperly weighed in on “political questions.”

In upholding voter ID and felon disenfranchisement laws that disproportionately affect African Americans, they said courts should presume lawmakers’ good faith despite the state’s racist past. They signed off on political gerrymandering because the state constitution doesn’t specifically forbid “political gerrymandering.” 

That ruling effectively guarantees Republican legislative supermajorities through 2030. The others signal that the court won’t hinder the General Assembly’s agenda. 

2. North Carolina Democrats are in trouble. 

The decisions allowing voter ID and disenfranchising individuals under felony supervision might hurt Democrats a little. But gerrymandering was the ballgame, and they lost. 

Not only did the Republican justices vacate the legislative and congressional districts used in last year’s election, but they also discarded the districts the General Assembly drew in 2021. The result: Republican lawmakers are now free to gerrymander with the Supreme Court’s blessing. 

The only question is how many Democrats will be drawn out of a job. (At least three of the seven Democrats in the U.S. House are likely doomed.)

“Following decisions such as this, we must remember that, though the path forward might seem long and unyielding, an injustice that is so glaring, so lawless, and such a betrayal to the democratic values upon which our constitution is based will not stand forever,” Democratic Justice Anita Earls wrote in dissent. 

Assuming no justices step down, Democrats can’t retake the Supreme Court until at least 2028. 

3. The gloves are off. 

Dissenting in the voter ID case, Democratic Justice Michael Morgan accused Republicans of “naivete” or “callousness” for arguing that the election of some African Americans obviates the state’s racial history. 

The majority had “shield[ed] acts of the state legislature from scrutiny for invidious discriminatory intent” by adopting “an unprecedented burden of proof” for equal protection claims, he added. “Although the majority repeatedly characterizes its framework as traditional and consistent with the bulk of state authority, the depiction is, mildly put, a freewheeling exaggeration.” 

Earls mocked Newby’s claim there was no way to determine how much gerrymandering was too much and said the Republicans did “not care about interpreting the constitution in good faith.” 

“This holding is not a mere error in legal interpretation,” Earls wrote. “I do not think that even the majority believes itself to be complying with the constitutional text.” 

Justice Phil Berger Jr.—son of the Republican Senate leader—wrote last week that the court was standing “as a bulwark … so that even in the most divisive cases, we reassure the public that our state’s courts follow the law, not the political winds of the day.”

It’s hard to see how three party-line rulings that benefit the majority’s party do so.

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Back in the News

Michael Regan, the head of the U.S. Environmental Protection Agency, faces a second lawsuit alleging that he created a toxic and retaliatory work environment while secretary of the North Carolina Department of Environmental Quality.

The complaint, which has not been reported previously, was filed late last year in federal court by former DEQ human resources director Melody Isaak. It repeats many of the same allegations Isaak made in a whistleblower lawsuit she brought against Regan, the DEQ, and former deputy secretary John Nicholson in state court in 2021.

The Assembly covered the state case in September. 

In the federal lawsuit, Isaak contends that Regan violated her civil rights under Title VII, which protects employees from discrimination based on race, color, religion, gender, national origin, age, or disability.

Isaak and Regan are Black; Nicholson is white. 

At the core of both cases is a remark that a custodian told Isaak he heard Nicholson make while Isaak was meeting with two other Black HR employees inside her DEQ office in the fall of 2018.

“They need to quit holding those Black Klan pep-rally meetings. This is a place of business,” Nicholson allegedly said.

Nicholson denied making the remark in a deposition included in the state case and said he’d never before been accused of making racially disparaging remarks. Now chief of staff in the EPA’s regional office in Atlanta, Nicholson testified that he was “crestfallen” when Regan informed him of the allegation.

“I don’t talk like that,” Nicholson said. “And for it to come to me that way, especially who Mr. Regan is, it hurt. It’s not me.”

Charles Bryant, the custodian, testified in a deposition that he was near the HR office as Nicholson and another male walked by. “Then that’s when I overheard them say, ‘Yup, they’re in there. You know, once again, they need to stop holding those Black Klan pep rallies.’”

“And I just stopped, you know, because I—you know, I don’t expect nobody to say nothing like that,” Bryant said.

Nearly two years later, Isaak reported the allegations to Regan. In her lawsuits, Isaak contends that Regan tried to cover up the alleged remarks and “cooked up” a plan to fire her.

Regan testified in a deposition that Isaak lost her job because she failed to follow proper procedures after a DEQ worker filed a complaint against her with the Equal Employment Opportunity office. He added that he sought advice from state HR administrators before terminating her. 

Isaak, whose annual DEQ evaluations showed that she had met or exceeded work expectations before her dismissal in August 2020, was hired by the administration of Gov. Roy Cooper for another job a few months later. 

— Anne Blythe, contributor

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On Our Radar

Pugh v. Howard 

In 2019, a Chatham County Superior Court judge dismissed a lawsuit from the United Daughters of the Confederacy that sought to block the county from removing a 110-year-old monument. The group argued that, as an “object of remembrance,” the monument was protected under a 2015 law. But the judge ruled that they lacked standing to sue. 

On Tuesday, the Court of Appeals agreed, ruling that the United Daughters of the Confederacy hadn’t suffered an injury, made the case that they were suing for the public good, or established a “proprietary or contractual interest in the monument.” The “objects of remembrance” law doesn’t allow private citizens to sue to enforce it, the panel found. 

The decision leans on a similar case out of Winston-Salem that the N.C. Supreme Court decided in December, which not only rejected the standing claims but also said that the 2015 law applies only to monuments “owned by the state,” not local governments. The highest court’s three Republican justices—now in the majority—didn’t sign on to that part.  

Torres v. Raleigh

On January 2, 2018, an employee of the City of Raleigh made an abrupt U-turn and collided with Shanybel Torres’ car. Torres, who spent three weeks in the hospital, sued. The city claimed immunity, arguing that the employee, Marty Lee Hall, was performing a government function when the accident occurred.

But cities lose that immunity when performing “proprietary” functions; Hall was responding to a reported water main leak, and the city’s utility service is considered proprietary. Yet the city argued that Hall made the U-turn after spotting a leak from a “ruptured backflow prevention valve,” and cutting off the water was in the public interest — thus making the U-turn itself a government function. 

A Wake County Superior Court judge didn’t buy it, and neither did the Court of Appeals, which ruled Tuesday that “Hall’s sole duty … was to repair a city-owned water main line—a proprietary purpose.”

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