May 9, 2023

North Carolina's Supreme Court makes a splash.

North Carolina's Supreme Court makes a splash.
North Carolina Gov. Roy Cooper (D), who now faces a Republican majority state legislature and a conservative-majority Supreme Court. Photo: NC Dept of Public Safety / Flickr

Plus, why do we sometimes skip reader questions?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

Are you new here? Get free emails to your inbox daily. Would you rather listen? You can find our podcast here.


Today's read: 10 minutes.

🇺🇸
We're covering the North Carolina Surpreme Court rulings. Plus, a question about why we sometimes skip reader questions. 

From today's advertiser: In the 90s and 2000s, Nicolas Cage was a premier action star and indie darling, headlining some of the most beloved films of the era (National Treasure is a classic; we don't care what you say). Cage's fortunes had declined with a series of low-budget B-movies, but now he’s back, better than ever and there’s data behind it.

Stat Significant has the answers to these questions and so much more. It’s a free weekly newsletter featuring data-centric essays about culture, economics, sports, statistics and more, written by a data scientist turned journalist.

​​- The rise and fall of Nicholas Cage: A statistical analysis.

- The AI Forecast: What Humanity Predicts for Artificial Intelligence.

- Why do people hate Nickelback so much? Fact-checking an internet phenomenon.

Get the answers, driven by data. It’s a new favorite, and it’s free to subscribe.


Quick hits.

  1. President Biden plans to meet with House Speaker Kevin McCarthy today to discuss the debt ceiling. The U.S. is roughly three weeks away from when Treasury Secretary Yellen said we risk defaulting. (The meeting)
  2. Pakistan's former Prime Minister Imran Khan was arrested on corruption charges. Khan claims the arrest was politically motivated. (The arrest)
  3. A client of Hunter Biden's now-defunct firm had multiple visits to the White House during the Obama administration, according to emails reviewed by Fox News. (The story)
  4. The Department of Transportation proposed new rules requiring airlines to compensate travelers for cancellations and delays caused by airline mismanagement. (The rules)
  5. Ukrainian forces said they shot down more than 30 drones after Russia launched airstrikes on Kyiv. (The drones)

Today's topic.

North Carolina's Supreme Court. Earlier this month, the North Carolina Supreme Court sided with Republicans in three major rulings: upholding the state's voter ID law, throwing out a previous ruling against gerrymandered voting maps, and overruling lower court decisions that felons have the right to vote. The ruling on the gerrymandered legislative maps will likely have a national impact, boosting Republicans' odds of growing their majority in the next House election.

The gerrymander case, Harper v. Hall, could also have an impact in Moore v. Harper, a case before the Supreme Court that is testing the independent state legislature theory. That theory asserts that only the state legislature itself has the power to set rules on congressional district lines and voting, with little or no interference from state courts. We covered that case here.

Both the gerrymander and voter ID rulings came along party lines and reversed the court's previous 4-3 decisions last year, which were issued when Democratic judges controlled the court. However, Republicans flipped two Democrats seats on the North Carolina Supreme Court to secure a 5-2 conservative majority.

Last year, Republicans and Democrats in North Carolina ended up sending a split delegation to Washington — seven Republicans and seven Democrats. Republican lawmakers are now expected to draw maps that could net Republicans as many as four additional Republican House seats. The two Democratic judges issued scathing dissents criticizing the decision to rehear the cases so soon, something that has been exceedingly rare in the state's history.

In the Harper v. Hall gerrymandering decision, Chief Justice Paul Newby said the North Carolina Constitution gives express redistricting authority to the general assembly and that the specific limitations on that authority do not include gerrymandering. The decision overrides the court’s previous ruling that the gerrymandered maps were "unlawful partisan gerrymanders," which were "unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause and the freedom of assembly clause of North Carolina’s constitution."

In the voter ID case, Holmes v. Moore, the court also ruled 5-2, once again citing the state constitution in giving unqualified authority to the legislature.

"Subjective tests and judicial sleight of hand have systematically thwarted the will of the people and the intent of the legislature. But no court exists for the vindication of political interests, and judges exceed constitutional boundaries when they act as a super-legislature,” Justice Phil Berger Jr. wrote. “We recommit to that fundamental principle and begin the process of returning the judiciary to its rightful place as ‘the least dangerous’ branch.”

The Holmes v. Moore decision also overrides a recent state Supreme Court ruling, a 4-3 decision from last December that struck down North Carolina voter ID law for being "infected with racial bias." The new ruling means the previously struck 2018 law will probably be enforced in the 2024 election.

Finally, the court ruled that felons who had completed active prison time but had not completed their full sentences could not vote. That ruling is expected to impact roughly 56,000 North Carolinians.

Today, we're going to take a look at some arguments about these rulings from the right and left, then my take.


What the right is saying.

  • Many on the right argue that the court has corrected the previous court's overreach, and that doesn't amount to judicial activism.
  • Some mocked the idea that this was all about race, noting that North Carolina voters wanted some of these changes.
  • Others questioned how this might impact the independent state legislature case before the Supreme Court.

The Wall Street Journal said this was "corrective to the old majority's overreach."

"Four liberal justices held that the North Carolina Constitution bans partisan map-making, because it guarantees 'free elections,' the rights of speech and assembly, and so forth," the board said. "At one point the court floated specific metrics that could be used to police gerrymandering, saying that a map could be presumptively constitutional if it has 'a mean-median difference of 1% or less.' This is no place for the judiciary... The U.S. Supreme Court said basically the same thing about federal gerrymandering in Rucho v. Common Cause, a 5-4 decision from 2019."

The board also celebrated the separate 5-2 ruling to uphold the state's voter ID law. "That ruling said voter ID was racially discriminatory, yet Justice Philip Berger Jr. skewers the evidence as 'fatally deficient' and 'speculative,'" the board noted. "One expert, he says, 'produced a mathematical analysis based on DMV records that showed 7.61% of black voters and 5.47% of white voters lacked some of the qualifying IDs.' These figures were transformed by the trial court into a finding that black voters were '39% more likely to lack a form of qualifying ID.' Justice Berger says the burden of proof demands more. It isn’t activist judging to undo activist judging."

In Hot Air, Beege Welborn celebrated the rulings and mocked Democrats who allege everything is about racism.

"Again for emphasis, voter ID was passed by the legislature after North Carolina citizens voted to include such a requirement in the state constitution," Welborn said. Now "Gov. Roy Cooper (D) has his mad on. The hyperbole about partisanship always cracks me up. Cooper was happy as a clam when the Dem heavy court ran amok over people (which they would wind up paying for). It becomes a case of who is 'ignoring the constitution' here. Voters obviously wanted it a part of the constitution, voting to do so."

"In December of last year, the 4-3 majority Democrat (partisan maybe?) court found that the voter ID law unfairly targeted black citizens and the gerrymandering statute was also unconstitutional because it bolstered one party’s base which, of course, unfairly targeted blacks," Welborn said. According to liberal Justice Anita Earles, "everything was done in the name of targeting blacks... It’s not so much the thought of the racial injustice of it all that’s really bugging the crap out of liberals and NC Dems right now;" it's that "they're no longer calling the shots and drawing their own whackadoodle maps."

In Reason, Jonathan H. Adler asked if this made the Moore v. Harper case moot?

"Last week, the North Carolina Supreme Court overturned its prior decision redrawing the state's congressional districts, thereby reversing the decision under review by the U.S. Supreme Court in Moore v. Harper. As Derek Muller noted over at the Election Law Blog, this could mean that Moore v. Harper is moot. Yesterday, the Court asked the parties for further briefing in light of these developments," he noted.

"Muller also notes another jurisdictional wrinkle in this case (also raised by Will Baude): How do North Carolina courts retain jurisdiction over a case that is already subject to Supreme Court review?" Adler asked. "Either way, the latest developments in North Carolina would give the justices an excuse to remove another case from the docket. Whatever the legal merits of such a move, it would make time for the justices to catch up on releasing opinions from argued cases."


What the left is saying.

  • Many on the left warned these rulings are a repeat of the worst political abuses in our history.
  • Some called out how this evenly divided state will now have misrepresentative Republican power.
  • Others argue North Carolina will now be one of the most anti-democratic states in America.

In MSNBC, Rev. Dr. William Barber said the court just "took a hatchet to democracy."

The "extremists who have worked to consolidate power in Republican hands effectively achieved a political coup — at least temporarily," Barber said. "The court’s decisions give Republicans free rein to draw voting maps that favor their candidates in future elections, create a new and unnecessary barrier for voters through a restrictive ID requirement and disenfranchise 55,000 formerly incarcerated citizens." This is what "anti-democracy forces did in the late 1870s to reverse the gains made during Reconstruction and to resist the changes demanded by the Civil Rights Movement and women’s rights movements in the 1960s and '70s."

This may "target Black people" or liberal voters, but "the truth is that they hurt most people by making it harder to pass policies that help those at the bottom and cause everyone to do better." The voter ID law, first introduced in 2013, went all the way to the Supreme Court, which "upheld a lower court’s opinion that the voter ID requirement they had tried to impose targeted African Americans with 'almost surgical precision.'"

In New York Magazine, Ed Kilgore said this was a "big blow" to Democrats’ chances of retaking the House.

This is "another example of even the most obscure elections having consequences." Still, there is a silver lining for progressives. "Because the court’s rationale was that the judiciary had no business getting involved in such politically fraught decisions as redistricting," the decision will likely "render moot" a petition "asking for confirmation of the radical 'independent state legislature theory'" that could have allowed Republican legislatures "to redraw maps without fear of legal challenges."

"Still, the decision of the North Carolina court to smile on the most blatant and ruthless partisan gerrymandering (echoing an earlier SCOTUS decision to wash its hands of such cases) is an ominous development for friends of truly representative democracy," Kilgore wrote. "In this closely balanced state, Republicans can once again exert power above and beyond that of their Democratic and independent neighbors."

In Slate, Gene Nichol said he wasn't sure North Carolina is the most anti-democratic state in the U.S., but it has "surely joined the hunt."

To overturn these cases, the conservative justices "had to throw out the rule books... In a move almost unknown to American law, the new Republican justices decided to take up these cases on a motion for rehearing," Nichol said. "Never before in the North Carolina Supreme Court’s over 200-year history had it granted a rehearing based on a change in the tribunal’s membership. Much less based on a change in the partisan makeup of the court." In the gerrymandering case, Chief Justice Paul Newby essentially argued that distortion of the districting process, even "extreme manipulation," is just fine.

In the voter ID case, the justices "simply cast aside trial court and prior Supreme Court factual determinations" that the law "was meant to handicap black voters." In the voting rights for felons case, once again, "findings of racial disparity and purpose were cast aside... It’s hard to see how you could show greater disdain for the rule of law than by nixing final judicial rulings just because new Republicans came on the court."


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. You can also leave a comment.

  • In this case, there is a very clear and obvious racial component to these policy proposals.
  • Still, each issue should be discussed separately.
  • On the whole, it's not a great day for North Carolinians, whose will not be properly represented after these latest rulings.

Yesterday, in discussing Jordan Neely, I wrote about how we should not make race a central focus of the story. I think it's important to differentiate that race is the central issue to this story. The background on how North Carolina Republicans have approached elections is as close to a smoking gun for racially motivated voter discrimination as we can get in America. Republicans in the state are not just trying to implement voter ID and gerrymander Republican districts, they have also tried to limit Sunday voting and early voting, which are disproportionately used by black Democrats. In each of these cases, Republicans collected data on voting trends and then took specifically designed action to counter Democratic tendencies. There is no need to complicate something that isn't.

Still, inside each of these four threads are various complexities: Gerrymandering, voter ID laws, voting rights for felons, and the impact on Moore v. Harper. I'm going to try to give you my thoughts on each, separately and briefly.

Gerrymandering is a scourge. We have covered it before, and I have made my opinion well known. I think it is one of the most toxic and destructive elements of American democracy, and it is becoming increasingly obvious that our politicians are choosing us, not the other way around. In researching this piece, I was intrigued by Grant Tudor and Beau Tremeitier's proposed solution to abandon single-member districts, which deserves more attention.

But for now: North Carolina's Supreme Court has erred greatly in allowing these heavily gerrymandered districts to be drawn unencumbered, and has once again swung an evenly split state to a healthy majority for one side. In 2020, Democratic governor Roy Cooper won 51.5% of the vote, while Republicans won eight House seats to Democrats’ five. In 2018, Republicans had 10 House seats to Democrats’ three. Once the gerrymandered map got thrown out in 2022, it was a 7-7 split. Clearly, one of these outcomes is more representative of the will of the people than the others. I’ll say again: Democrats have been just as guilty as Republicans, but in this case the court is enshrining an advantage for Republicans in North Carolina that doesn’t exist.

Voter ID laws are more complicated. While Republicans surely seem to believe it will benefit them (because what political party implements a policy it thinks will hurt them electorally), there is not a great deal of evidence that voter ID laws reduce election fraud or voter turnout. Since these laws counterintuitively tend to have little impact on either, I’m pretty ambivalent about them. In this case, given that North Carolina voters wanted these laws, I don't find the court's ruling too egregious.

Despite my belief that North Carolina Republicans are hoping this voter ID law reduces turnout among black voters, the impact of the law probably won’t be dramatic. I'm open to voter ID laws, but prefer legislation that also stipulates the government will provide IDs to voters free of charge and conveniently. We don't need any more obstacles to voting.

On voting rights for felons, there is also some nuance. As I've stated in the past, I think anyone who is convicted of a crime and serves their punishment should have their full rights restored — full stop. The entire point of serving a punishment as rehabilitation is that it's all of the punishment. It cannot go on in perpetuity. So convicted felons who serve their sentences should not just be able to vote, but to run for office, apply for a job without serious obstacles, and so on.

In this case, the law was specifying the restoration of rights after a prison term was served, but before probation or post-release supervision had been completed. Given how long those post-release probations can last, and given how fundamental the right to vote is, my preference is that rights are fully restored after a prison term is over. But I understand this does not represent "completion" of a punishment in some people's eyes, and I can see the court's rationale (or the public's, for that matter) for going the other way.

Finally, and bluntly, the independent state legislature theory is bonkers. Fortunately there is some bipartisan consensus there, and this ruling should render the case in favor of it moot. However, I was quite confident the Supreme Court was going to reject the theory anyway, and it may have been good for the country to see that unfold. Either way, anything working against the odds of independent state legislature theory getting a high court endorsement is fine with me.

All together, it's a mixed bag for democracy, but a tough day for North Carolinians. A pretty evenly divided political state will now swing to state and federal control dominated by Republicans, become saddled with ineffective voter ID laws, and have even more reason to believe its courts are politically motivated and willing to skirt long-standing precedent to overturn recent decisions. On the whole, it's not an encouraging set of rulings.


Your questions, answered.

Q: Why do you occasionally skip the Reader's Question? I am not convinced by your claim it is to "save space" since this is a digital newsletter — an extra paragraph or two isn't going to increase your costs, only our (the readers') investment. Would you please enlighten us on your reasoning?

— John G from Reno, Nevada

Tangle: It is... to save space. Truly!

One of the most consistent pieces of critical feedback we get about Tangle is that it is "too long" for a newsletter. I disagree, frankly, as I don't think it's possible to capture the nuance of the debates we cover without getting a little into the weeds on big issues. But I understand that your time is limited, so I try to keep our daily newsletters (Monday-Thursday) to fewer than 4,000 words and in the ballpark of a 10-minute read. I also do this because sometimes email providers will "clip" our email — or cut it off before it ends — if it runs too long. This can create all sorts of delivery issues for us.

Given that the main topic is the crux of our newsletter, I prioritize that. Sometimes, the main topic is so complex that the "Today's topic" section, the takes from the right and left, and "My take" cannot be summed up or cut in the way I like, and they end up occupying close to 4,000 words on their own. When that happens, it becomes worth it, to you and to me, to save a few hundred words of space. The reason that the reader question gets cut is that in reader surveys, Tangle readers consistently say they skip over the "Your questions, answered" section more than any other (Don't ask me why, I haven't figured that one out yet!).

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The term "screenagers" has been coined to describe teenage kids who refuse to get off their cell phones. And now schools have had enough. Schools in Ohio, Colorado, Maryland, Connecticut, Pennsylvania, Virginia, and California are beginning to ban devices in class to curb students' obsession with their phones and to help address what many believe is the root cause of certain mental health issues. The pandemic brought more urgency to the issue after kids came back to school and were spending far more time on their phones than before, according to many teachers. Now, some schools are using Yondr pouches to lock up students' phones during the day. The Washington Post has the story.


Numbers.

  • 7,412,056. The number of eligible voters in North Carolina in 2022.
  • 3,745,547. The number of votes cast in North Carolina in the 2022 election.
  • 79%. The percentage of Americans who support requiring all voters to provide photo identification at their voting place in order to vote.
  • 78%. The percentage of Americans who support early voting.
  • 65%. The percentage of Americans who support automatic voter registration.
  • ~9 in 10. The number of voters who oppose the use of redistricting to help one political party or politician over the other.

The extras.

  • One year ago, we were covering JD Vance's win in Ohio.
  • The most clicked link in yesterday's newsletter was the mystery of the pasta in the woods.
  • Nuance: 36.28% of Tangle voters said Daniel Penny was right to intervene, but went too far and should be charged with a crime, the most of any response. 25.25% said he was right to intervene and should not be charged. 11.47% said he was wrong to intervene and should be charged.
  • Nothing to do with politics: How to tell if a photo is an AI-generated fake.
  • Take the poll. What do you think about voter ID laws? Let us know.

Have a nice day.

Meenakshi Gupta has been blind since birth. But that hasn't stopped her from spotting breast cancer in her patients. In fact, it might be helping. Gupta is a medical tactile examiner (MTE), an emerging profession for blind and visually impaired women in India and Europe. She was trained for nine months in tactile breast examinations, a specialized practice to spot breast cancer in patients. Studies have shown that in the absence of vision, the brains of blind people can develop heightened sensitivity in touch, hearing, and other senses. Gupta is one of several women putting those enhanced senses to use, spotting lumps as small as 6 to 8mm. BBC News has the remarkable story.


Before you go...

Remember: We have no investors, a small team, and are up against all the divisive, partisan, sensational news outlets in the world. There are so many ways to support us — please consider taking one action to help!

📣  Share Tangle on Twitter here, Facebook here, or LinkedIn here.

🎥 Follow us on Instagram here or subscribe to our YouTube channel here

💵  If you like our newsletter, drop some love in our tip jar.

🎉 Want to reach 58,000+ people? Fill out this form to advertise with us.

📫  Forward this to a friend and tell them to subscribe (hint: it's here).

🛍  Love clothes, stickers and mugs? Go to our merch store!

Subscribe to Tangle

Join 90,000+ people getting Tangle directly to their inbox!

Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.