No.

413PA21 TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

***************
REBECCA HARPER; AMY CLARE OSEROFF; DONALD From N.C.
RUMPH; JOHN ANTHONY BALLA; RICHARD R. CREWS; Court of
LILY NICOLE QUICK; GETTYS COHEN, JR.; SHAWN Appeals
RUSH; JACKSON THOMAS DUNN, JR.; MARK S. PETERS; P21-525
KATHLEEN BARNES; VIRGINIA WALTERS BRIEN; DAVID
From Wake
DWIGHT BROWN
21CVS015426
21CVS500085
v.

REPRESENTATIVE DESTIN HALL, in his official capacity as

Chair of the House Standing Committee on Redistricting;
SENATOR WARREN DANIEL, in his official capacity as Co-
Chair of the Senate Standing Committee on Redistricting and
Elections; SENATOR RALPH HISE, in his official capacity as
Co-Chair of the Senate Standing Committee on Redistricting
and Elections; SENATOR PAUL NEWTON, in his official
capacity as Co-Chair of the Senate Standing Committee on
Redistricting and Elections; SPEAKER OF THE NORTH
CAROLINA HOUSE OF REPRESENTATIVES TIMOTHY K.
MOORE; PRESIDENT PRO TEMPORE OF THE NORTH
CAROLINA SENATE PHILIP E. BERGER; THE NORTH
CAROLINA STATE BOARD OF ELECTIONS; DAMON
CIRCOSTA, in his official capacity

__________________________________________________________

NORTH CAROLINA LEAGUE OF CONSERVATION

VOTERS, INC.; HENRY M. MICHAUX, JR.; DANDRIELLE
LEWIS; TIMOTHY CHARTIER; TALIA FERNOS;
KATHERINE NEWHALL; R. JASON PARSLEY; EDNA
SCOTT; ROBERTA SCOTT; YVETTE ROBERTS; JEREANN
KING JOHNSON; REVEREND REGINALD WELLS;
YARBROUGH WILLIAMS, JR.; REVEREND DELORIS L.
JERMAN; VIOLA RYALS FIGUEROA; and COSMOS
GEORGE

v.
 HARPER, ET AL. V. HALL, ET AL.

No. 413PA21

Order of the Court

REPRESENTATIVE DESTIN HALL, in his official capacity as

Chair of the House Standing Committee on Redistricting;
SENATOR WARREN DANIEL, in his official capacity as Co-
Chair of the Senate Standing Committee on Redistricting and
Elections; SENATOR RALPH E. HISE, JR., in his official
capacity as Co-Chair of the Senate Standing Committee on
Redistricting and Elections; SENATOR PAUL NEWTON, in
his official capacity as Co-Chair of the Senate Standing
Committee on Redistricting and Elections;
REPRESENTATIVE TIMOTHY K. MOORE, in his official
capacity as Speaker of the North Carolina House of
Representatives; SENATOR PHILIP E. BERGER, in his
official capacity as President Pro Tempore of the North
Carolina Senate; THE STATE OF NORTH CAROLINA; THE
NORTH CAROLINA STATE BOARD OF ELECTIONS;
DAMON CIRCOSTA, in his official capacity as Chairman of
the North Carolina State Board of Elections; STELLA
ANDERSON, in her official capacity as Secretary of the North
Carolina State Board of Elections; JEFF CARMON III, in his
official capacity as Member of the North Carolina State Board
of Elections; STACY EGGERS IV, in his official capacity as
Member of the North Carolina State Board of Elections;
TOMMY TUCKER, in his official capacity as Member of the
North Carolina State Board of Elections; and KAREN
BRINSON BELL, in her official capacity as Executive Director
of the North Carolina State Board of Elections
***************

ORDER

This matter comes before the Court pursuant to a petition for rehearing filed

by legislative-defendants and a corresponding motion to dismiss petition for

rehearing filed by plaintiff-intervenor Common Cause.

The Rules of Appellate Procedure provide that a petition for rehearing “shall

state with particularity the points of fact or law that, in the opinion of the petitioner,

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 HARPER, ET AL. V. HALL, ET AL.

No. 413PA21

Order of the Court

the court has overlooked or misapprehended . . . .” N.C. R. App. P. 31(a). Further,

the Rules provide that “[a] determination to grant or deny [the petition] will be made

solely upon the written petition; no written response will be received from the

opposing party . . . .” N.C. R. App. P. 31(c).

Plaintiff-intervenor’s filing responds substantively to legislative-defendants’

petition for rehearing. Such a filing is expressly not permitted by the Rules of

Appellate Procedure and plainly violates Rule 31(c) and Rule 37(a). Accordingly, we

dismiss as frivolous plaintiff-intervenor’s motion to dismiss, and the filing is hereby

stricken because it grossly violates appellate rules.

In exercising our duty and authority to address alleged errors of law, this Court

has granted rehearing of cases under both Rule 31 and its historical predecessor,

former Rule 44. In Nowell v. Neal, this Court provided guidance on when a litigant

has satisfied the criteria for rehearing under Rule 31. 249 N.C. 516, 521, 107 S.E.2d

107, 111 (1959). In addressing rehearing under a predecessor version of Rule 31 with

nearly identical operative language, the Court observed that a recently issued opinion

appropriately is reheard if the petitioner makes a satisfactory showing that the

opinion may be erroneous: “No petition to rehear was filed. That is the appropriate

method of obtaining redress from errors committed by this Court.” Id.

This Court has consistently allowed a petition for rehearing when the

petitioner has made the showing required by Nowell. See, e.g., Bailey v. Meadows Co.,

154 N.C. 71, 69 S.E. 746 (1910) (modifying prior opinion upon grant of rehearing);

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 HARPER, ET AL. V. HALL, ET AL.

No. 413PA21

Order of the Court

Clary v. Alexander Cty. Bd. of Educ., 286 N.C. 525, 212 S.E.2d 160 (1975)

(withdrawing prior opinion upon grant of rehearing); Branch Banking & Trust Co. v.

Gill, 293 N.C. 164, 237 S.E.2d 21 (1977) (same); Lowe v. Tarble, 313 N.C. 460, 329

S.E.2d 648 (1985) (affirming prior opinion upon grant of rehearing); Alford v. Shaw,

320 N.C. 465, 358 S.E.2d 323 (1987) (withdrawing prior opinion upon grant of

rehearing); Wilson v. State Farm Mut. Auto. Ins. Co., 329 N.C. 262, 404 S.E.2d 852

(1991) (withdrawing in part and affirming in part prior opinion upon grant of

rehearing); Swanson v. State, 330 N.C. 390, 410 S.E.2d 490 (1991) (affirming prior

opinion upon grant of rehearing), vacated and remanded, 509 U.S. 916 (1993); and

Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999)

(superseding prior opinion upon grant of rehearing).

Upon consideration of legislative-defendants’ petition and the arguments

therein, this Court allows the petition for rehearing. The parties are hereby directed

as follows:

(1) Legislative-defendants shall file supplemental briefs

with this Court on or before 17 February 2023.

(2) All plaintiffs and shall file supplemental briefs with

this Court on or before 3 March 2023.

(3) In addition to the issues raised in the petition for

rehearing, the parties shall also brief the following
issues:

(a) Whether congressional and legislative maps

utilized for the 2022 election, which were drawn
at the direction of this Court, are effective for
future elections;

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No. 413PA21

Order of the Court

(b) What impact, if any, the following provisions of

the North Carolina Constitution have on our
analysis: Article II, Section 3(4) and Article II,
Section (5)(4); and

(c) What remedies, if any, may be appropriate.

This matter shall be placed on the 14 March 2023 calendar for rehearing.

By order of the Court in Conference, this the 3rd day of February 2023.

/s/ Allen, J.
For the Court

Justices Morgan and Earls dissent as set out in the attached statement.

WITNESS my hand and the seal of the Supreme Court of North Carolina, this

the 3rd day of February 2023.

_________________________
Grant E. Buckner
Clerk of the Supreme Court

Copy to:
North Carolina Court of Appeals
West Publishing - (By Email)
Lexis-Nexis - (By Email)

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 No. 413PA21 – Harper, et al. v. Hall, et al.

Justice EARLS dissenting.

The majority’s order fails to acknowledge the radical break with 205 years of

history that the decision to rehear this case represents. It has long been the practice

of this Court to respect precedent and the principle that once the Court has ruled,

that ruling will not be disturbed merely because of a change in the Court’s

composition. Indeed, data from the Supreme Court’s electronic filing system indicate

that, since January 1993, a total of 214 petitions for rehearing have been filed, but

rehearing has been allowed in only two cases.1

It has been the understood practice of this Court that rehearing is not allowed

solely because a Justice may have had a change of heart after the opinion in the case

has been issued or because an opinion was controversial. Moreover, this Court has

respected the idea that “even if judges have ideological preferences and

methodological differences . . . partisan loyalties [should] fade away after investiture

to reveal a judiciary of men and women bound together by collegiality norms and the

rule of law.” Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L.

Rev. 1373, 1375 (2021). For these reasons, rehearing under our rules is meant to be

1 The Court most recently granted rehearing in Jones v. City of Durham, 361 N.C. 144 (2006). There,
the Court granted rehearing for the limited purpose of reconsidering specific evidence in a negligence
action that involved a single plaintiff, rather than to consider abolishing a constitutional right that
belongs to millions of voters. There was no dissent to the per curiam final opinion of the Court,
indicating the absence of any partisan divide over the issue. The other case in which the Court
permitted rehearing was Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805 (1999). That
case similarly did not involve a fundamental issue central to the structure of our democracy and had
no impact whatsoever on elections.
 HARPER V. HALL

Earls, J., dissenting

limited to the rare occasions when the Court was initially unaware of material

evidence already in the record or makes an obvious and indisputable error.

To be clear, whether one considers the entire 205 years that this Court has

been in existence or the most recent thirty years, there has been no shortage of

politically controversial cases, and it is not unusual for the partisan balance of the

court to shift. Respect for the institution and the integrity of its processes kept

opportunities for rehearing narrow in scope and exceedingly rare. Today, that

tradition is abandoned.

Nothing has changed since we rendered our opinion in this case on 16

December 2022: The legal issues are the same; the evidence is the same; and the

controlling law is the same. The only thing that has changed is the political

composition of the Court. Now, approximately one month since this shift, the Court

has taken an extraordinary action: It is allowing rehearing without justification.

More troubling still, today this Court grants not one but two petitions for re-

hearing. See Holmes v. Moore, 2022-NCSC-122 (Feb. 3, 2023) (order on motion for

rehearing) [hereinafter Holmes Order]. This means that in a single day, the majority

has granted more petitions for rehearing than it has over the past twenty years.

There is nothing constitutionally conservative about the Court’s decisions to allow

rehearing in these cases. Going down this path is a radical departure from the way

this Court has operated, and these orders represent a rejection of the guardrails that

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 HARPER V. HALL

Earls, J., dissenting

have historically protected the legitimacy of the Court. Not only does today’s display

of raw partisanship call into question the impartiality of the courts, but it erodes the

notion that the judicial branch has the institutional capacity to be a principled check

on legislation that violates constitutional and human rights.

Despite its brevity, the Court’s order is riddled with inaccuracies. It

misleadingly states, for example, that this Court’s previous decision in Nowell v. Neal,

249 N.C. 516 (1959), “provide[s] guidance on when a litigant has satisfied the criteria

for rehearing.” Harper v. Hall, No. 13P19, at 3 (Feb. 3, 2023) (order on motion for

rehearing) [hereinafter Order] (emphasis added). Notably, the granting or denial of a

petition for rehearing was not at issue in Nowell—none of the parties there requested

rehearing nor did the Court consider granting as much. Rather than defining the

showing a petitioner must make before a petition for rehearing is properly granted,

Nowell simply pointed out the unremarkable fact that such a petition is “the

appropriate method of obtaining redress from errors committed by this Court.”

Nowell, 249 N.C. at 521.

The Court’s order then makes the bold claim that “[t]his Court has consistently

allowed a petition for rehearing when the petitioner has made the showing required

by Nowell.”2 Order at 3. The Court cites eight cases in support of its assertion, none

2 To repeat, Nowell did not define any “showing” that must be made, and the only “guidance” it provides
is its recognition that Rule 31—what was then Rule 44—is the means by which a party asks one of
this State’s appellate courts to review one of its own decisions. 249 N.C. at 521.

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 HARPER V. HALL

Earls, J., dissenting

of which were decided in this millennium and none of which mention Nowell or its

fictitious standard.

The first of those cases, Bailey v. Meadows Co., 154 N.C. 71 (1910), was decided

in 1910—forty-nine years before Nowell defined the “showing” that Bailey supposedly

applied. Moreover, Bailey was decided 113 years ago, highlighting the scarcity of

cases from which the majority can draw in attempting to downplay the radical action

it has taken today. Finally, the Bailey Court granted reconsideration for the narrow

purpose of reviewing evidence that it failed to consider initially. By contrast, today’s

order does not constrain review to limited evidentiary questions but instead grants

in full a motion that seeks to reverse the entirety of two separate decisions of this

Court. See Harper v. Hall, 380 N.C. 317, cert. granted sub nom., Moore v. Harper, 142

S. Ct. 2901 (2022); Harper v. Hall, ___ N.C. ___, 2022 N.C. LEXIS 1100 (Dec. 16,

2022).

The other cases the majority cites are similarly unavailing. For example, the

Court permitted rehearing in Clary v. Alexander County Board of Education, 286 N.C.

525 (1975), after the plaintiffs brought to light evidence to which the parties had

stipulated and agreed “would be considered as having been introduced in evidence

without the necessity of putting [it] in ‘one by one.’ ” Id. at 529. Despite the

stipulation, the evidence was overlooked. Id. But these facts were “prerequisite to

recovery by plaintiff[s]. In the absence thereof,” the defendant’s motions for directed

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Earls, J., dissenting

verdicts were granted. Id. Reconsideration was therefore necessary to consider the

stipulated evidence. Id. In Branch Banking & Trust Co. v. Gill, 293 N.C. 164, 181

(1977), the Court granted rehearing and withdrew its first opinion because it did not

apply the controlling legal statute. The defendant in Wilson v. State Farm Mutual

Automobile Ins. Co., 329 N.C. 262 (1991) (per curiam), “petitioned for a rehearing ‘for

the purpose of correcting a very specific and limited error of fact and law, rather than

for the purpose of affecting the Court's ultimate conclusion.’ ” Id. at 263. And in Alford

v. Shaw, 320 N.C. 465 (1987), the Court granted rehearing because it originally

misunderstood the pertinent legal issue.

Rather than supporting the majority’s position, these cases demonstrate that

rehearing in this Court is used cautiously; it is rarely permitted, and when allowed,

it is limited in scope. Legislative Defendants’ motion, by contrast, seeks to upend the

constitutional guarantee that voters in the State will enjoy “substantially equal

voting power,” regardless of their political affiliations. See Harper, 380 N.C. at 376.

Such a change would fundamentally alter the political rights of every voter in North

Carolina.

The consequences of this Court’s orders are grave. The judiciary’s “authority

. . . depends in large measure on the public’s willingness to respect and follow its

decisions.” Williams-Yulee v. Florida. Bar, 575 U.S. 433, 446 (2015). The public’s trust

in this Court, in turn, depends on the fragile confidence that our jurisprudence will

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Earls, J., dissenting

not change with the tide of each election. Yet it took this Court just one month to send

a smoke signal to the public that our decisions are fleeting, and our precedent is only

as enduring as the terms of the justices who sit on the bench. The majority has

cloaked its power grab with a thin veil of mischaracterized legal authorities. I write

to make clear that the emperor has no clothes. Because this Court’s decision today is

an affront to the jurisprudence of this State and to the citizens it has sworn an oath

to serve “impartially,” “without favoritism to anyone or to the State,” I dissent. See

N.C.G.S. § 11-11 (2022).

Justice MORGAN joins in this dissenting opinion.

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