The Yale Law Journal


Tar Heel Constitutionalism: The New Judicial Federalism in North Carolina

29 Mar 2024

abstract. The North Carolina Supreme Court has a mixed record of sometimes interpreting state constitutional guarantees in lockstep with federal constitutional doctrine, other times extending greater protection to individual rights than has been recognized by the U.S. Supreme Court, and most recently holding that the state equal-protection guarantee is narrower and more limited than the federal doctrine on questions of intentional racial discrimination. There is clear precedent that individuals have a private right of action to sue for damages for the violation of state constitutional rights if no other adequate remedy is available, but the principle has only been applied in three cases since first recognized. State constitutions can be a rich source of doctrines to shape how the fundamental guarantees of civil and political rights, individual liberties, and the promises of democracy are applied, but only if all relevant stakeholders are committed to playing a role in developing that body of law. In a state like North Carolina, where judges are elected, ultimately it is in the hands of the voters to choose what they want from their judicial system.


Among the various rationales advanced for the proposition that state constitutions are a rich and appropriate source of legal authority to define and guarantee individual rights is a pragmatic, expedient justification: that state constitutional guarantees may provide greater protection than is found in the Federal Constitution.1 Judge Jeffrey Sutton makes this case by analogizing legal claims to free throws in a basketball game.2 He asks why lawyers regularly take only one shot to invalidate state or local laws or governmental action, by stating claims only under the Federal Constitution, when state constitutional claims are also within bounds.

Justice William J. Brennan, Jr. encouraged state courts to see their state constitutions as “a font of individual liberties” in his seminal 1977 Harvard Law Review article,3 widely credited for launching a New Federalism movement.4 One reason this pivot to state constitutions was crucial, in his view, was a recent series of “door-closing” decisions from his Court.5 Similarly, my perception that federal courthouse doors were closing to the civil-rights claims of people of color and low-income families was a factor in my decision to seek election to the North Carolina Supreme Court in 2018.6

At the start of my career as a civil-rights attorney in the South in 1988, I joined a nationally renowned private firm that litigated significant and precedent-setting civil-rights cases in federal courts.7 It was the generally accepted wisdom that advocates turned to federal courts to vindicate individual rights because state courts, which were more engaged with local politics, were too much a part of the oppressive power structures that needed to change.8 The conclusion was that whether by influence or inclination, state court judges would not be fair and independent, and their courts were not a promising avenue for justice.9

Nevertheless, the firm litigated some important civil-rights cases in state courts. These suits established a direct cause of action for plaintiffs whose rights under the state constitution had been violated in Corum v. University of North Carolina,10and led to a holding that expanded reproductive rights in Whittington v. North Carolina Department of Human Resources.11 From a plaintiff’s perspective, the choice of whether to sue under the Federal Constitution or the state constitution—or in federal court or state court—was a complicated balancing of numerous factors unique to each case.

To be sure, the precept that the vindication of constitutional rights was more likely to come under federal law and in federal court was longstanding and widely followed. For example, in enacting the Voting Rights Act in 1965, Congress decided not only that state courts were not up to the task of protecting voting rights, but also that even federal district courts in the South could not be trusted to fairly determine whether a particular change affecting voting had the purpose or effect of discriminating against Black voters. Therefore, any jurisdiction seeking judicial preclearance of its voting laws, practices, and procedures had to file in the U.S. District Court for the District of Columbia, rather than with a local federal court.12

Just as in North Carolina, the national historical record reveals that state courts have been an important forum for the protection of individual rights, while at the same time, there is a strong basis in fact for the conclusion that state courts sometimes are reluctant to expand rights beyond those recognized by federal courts interpreting the Federal Constitution.13 Unfortunately, much of the state court litigation impacting individual rights, whether expanding those rights or denying them protection, is ignored by scholars and unknown to the general public.14 As just one example, law students are taught Marbury v. Madison15as the foundational case establishing the principle of judicial review, but not Bayard v. Singleton,16 the North Carolina case that—fifteen years before Marbury—recognized the principle of judicial review under the state constitution.17

One of the downsides of this relative lack of attention to state constitutions is that it makes it more difficult to test the pragmatic hypothesis. That is, in Judge Sutton’s terms, do individuals seeking to vindicate their rights actually have two free throws, one to a federal basket of constitutional rights and one to a state basket of constitutional rights? Or are they playing in a game where a foul grants them only one shot? If there are in fact two shots, are the baskets at the same height, presenting equal opportunities to score, or is one set at a higher bar than the other?

This Essay seeks to narrow this gap by considering the extent to which individual rights have been more fully protected under North Carolina’s state constitution than under the Federal Constitution. Various state supreme courts have found expanded state constitutional rights in different areas of the law. The Washington State Supreme Court has issued multiple rulings on how to eliminate the effects of racial bias in the judicial system that go well beyond federal jurisprudence.18 Connecticut’s Supreme Court has held that the death penalty is cruel and unusual punishment under the state constitution.19 Multiple state supreme courts ruled that their state constitutions protected same-sex marriage before the U.S. Supreme Court decided the issue under the Federal Constitution in Obergefell v. Hodges.20 The post-Dobbs v. Jackson Women’s Health Organization21record of state court constitutional decisions is unsettled, to say the least. South Carolina’s high court, for example, first decided that the state’s 2021 law banning abortions after six weeks was unconstitutional, but then, after a change of personnel on the court, upheld a 2023 law with the same language that was based on different legislative findings.22 In this landscape of renewed attention to state constitutional law, North Carolina is notable for its state constitutional decisions addressing core democracy issues including partisan gerrymandering,23 voter ID requirements,24 and felony disenfranchisement.25

It is hardly a novel observation that historically and currently, federal courts and state courts operate in an interactive system, in which changes in federal constitutional doctrine lead to corresponding changes in state constitutional doctrine, and vice versa. Despite some bright spots and bursts of optimism, North Carolina’s record of interpreting its own state constitution to provide greater protection of individual rights is mixed. At times, the North Carolina Supreme Court has been a favorable venue to expand the protection of individual rights beyond federal doctrine, and at other times the doors have been shut here too.

State and federal courts have articulated views of judicial review that align in some ways and depart in others by reflecting differing views of the role of judicial review and the proper approach to constitutional interpretation. Originalism and a fierce dedication to the principle that the judiciary should defer to the people’s elected representatives in the legislature—operationalized by the proposition that the presumption of constitutionality means a court must be satisfied that a statute is unconstitutional “beyond a reasonable doubt”—underlies recent decisions from the North Carolina Supreme Court,26 for example. Although the U.S. Supreme Court has also employed originalism, it has not used the “beyond a reasonable doubt” formulation since 1895.27

In short, while the two court systems do not operate in isolation, lockstepping,28 generally understood as a state court deciding to apply the same analysis under its state constitution as that which applies under the Federal Constitution, may not be as uniform as some might assume. Therefore, the U.S. Supreme Court is not the only game in town when it comes to conceptualizing the proper role of the judiciary, methods of constitutional interpretation, or the protection of individual rights. Ultimately, cultivating dialogue among state and federal courts about the protection of individual rights requires a legal culture that recognizes state constitutions as relevant and state courts as competent to advance constitutional doctrine and fairly adjudicate constitutional claims.

I. the new judicial federalism in north carolina

To start with, it is useful to consider why it might make sense to examine modern jurisprudential developments in North Carolina if the goal is to shine light on the potential for more fruitful interplay between state and federal courts on the nature of constitutional rights. North Carolina’s state constitutional provisions protecting the right to vote lately have been front and center in the national debate over whether and how to protect voting rights in our modern democracy. Having laid a foundation, the stage is set to examine more closely how various state constitutional provisions have been interpreted in recent decades.

A. Why North Carolina?

This Essay takes North Carolina as a case study of the New Judicial Federalism. Some of the recent renewed attention across the country to the importance of state courts and state constitutional guarantees has arisen from two cases from North Carolina decided by the U.S. Supreme Court.29 Raising issues relating to voting rights, redistricting, and the protection of democracy, both cases brought greater attention to the role of state constitutional doctrine in these areas of the law.30

With regard to partisan gerrymandering, litigants long focused their efforts on potential federal constitutional theories to address the problem.31 More recently, advocates turned to state constitutions. The voters of Florida amended their state constitution with specific measures addressing partisan gerrymandering in 2010,32 and the Florida Supreme Court held in 2015 that the state’s twenty-seven congressional districts “were ‘taint[ed]’ by unconstitutional intent to favor the Republican Party and incumbents.”33 In 2018 the Pennsylvania Supreme Court held that partisan gerrymandering of that state’s congressional districts violated the state constitution.34 This advocacy at the state level became even more essential in 2019, when the U.S. Supreme Court held in Rucho v. Common Cause35that claims arising under partisan gerrymandering are not justiciable under the Federal Constitution. The case arrived at the Court after a federal three-judge panel unanimously concluded that North Carolina’s 2016 congressional redistricting plan, drawn as a remedy for a successful racial gerrymandering challenge to the districts drawn in 2011, was an unconstitutional partisan gerrymander in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. In Rucho, Chief Justice Roberts, writing for the majority and responding to the argument that courts must curb partisan gerrymandering because legislatures will not, explained:

Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. The dissent wonders why we can’t do the same. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.36

In effect, the fact that state constitutional provisions might address the issue supported the Court’s decision to close the door to any arguments that partisan gerrymandering violates the Equal Protection Clause of the Fourteenth Amendment or infringes the freedoms secured by the First Amendment.

Three years after Rucho, the North Carolina Supreme Court accepted the U.S. Supreme Court’s invitation to evaluate partisan gerrymandering under the state constitution. In Harper v. Hall, it determined that the state’s legislative and congressional districts, redrawn in 2021 following the 2020 census, were an extreme partisan gerrymander that violated the state’s constitutional guarantees of equal protection, fair elections, and freedom of speech.37 Yet on appeal, the U.S. Supreme Court entertained arguments that the state supreme court did not have the authority to impose state constitutional limits on the drawing of congressional districts because the U.S. Constitution specifies that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof[.]”38 The potential ramifications of adopting this “independent state legislature theory” were debated far and wide.39 The chief justices of every state supreme court in the country filed an amicus brief urging the court not to usurp their authority to interpret their own state constitutions and review the acts of their states’ legislatures to determine conformity therewith.40 In a 6-3 decision in Moore v. Harper, the Court put to rest the notion that the Federal Constitution divested state supreme courts of the power of judicial review in these circumstances, but left open the possibility that if a rogue state supreme court were to interpret its own constitution in a manner inconsistent with federal law, the U.S. Supreme Court may need to step in.41

That state constitutions must be interpreted consistent with federal law is a well-known proposition. In the area of redistricting, for example, the North Carolina Constitution’s whole-county provision for state legislative districts has been subject to the one-person, one-vote requirement of the Federal Constitution since Reynolds v. Simsin 1964. Those same whole-county provisions of the state constitution were abandoned entirely in the face of the need to comply with Section 5 of the Voting Rights Act, and then “harmonized” in state court litigation in the 2000s.42 A literacy requirement remains in the state constitution but has not been enforced since the mid-1970s due to contrary federal law.43 Leaving federalism doctrine where it has been for a long time, the decision in Moore v. Harper was widely seen as a victory by those seeking to curb partisan gerrymandering and left the door open for other state supreme courts to look to their state constitutional guarantees as a check on state legislative action,44 even though it had no effect in North Carolina.45

Beyond recent legal developments that have garnered national attention, at times North Carolina justices have regarded the state as being at the vanguard of state constitutional interpretation. In 1992, then-retired North Carolina Supreme Court Justice Harry C. Martin offered a normative account for invigorating state constitutional law:

When faced with an opportunity to provide its people with increased protection through expansive construction of state constitutional liberties, a state court should seize the chance. By doing so, the court develops a body of state constitutional law for the benefit of its people that is independent of federal control. This unique corpus juris may be better adapted to the particular needs and concerns of the state, and stands safe from the vicissitudes of the United States Supreme Court.46

He went on to assert that “North Carolina has been at the head of the movement to energize state constitutional law.”47 But has the state heeded his advice and continued to lead the movement? The record is mixed.

B. North Carolina’s Mixed Record of Protecting Individual Rights

A series of state court decisions in the 1980s and early 1990s may have been what Justice Martin had in mind when he praised the high court’s record, beginning with State v. Carter.48 Carter held that under the North Carolina Constitution’s prohibition on unreasonable searches and seizures, the exclusionary rule—which prohibits the use of evidence obtained in violation of that provision—would not be subject to a good-faith exception, unlike the exception the U.S. Supreme Court found in United States v. Leon.49 However, Carter’s continued vitality is questioned by some. Decades after Carter, the North Carolina legislature purported to establish a good-faith exception under the state constitution by enacting a statute in 2011 that codifies the exclusionary rule with a good-faith exception.50 At least one unreported appellate opinion has noted that Carter was “superseded by” statute, although it expressly declined to decide whether a state statute can “supersede” the North Carolina Supreme Court’s interpretation of the state constitution.51

More firmly recognized is the seminal case establishing that there is a direct cause of action for the violation of state constitutional rights if no other remedy exists. In Corum v. University of North Carolina, the North Carolina Supreme Court held that a plaintiff who has no other remedy is guaranteed by the common law a direct cause of action for alleged violations of state constitutional rights.52 Relying on earlier precedents that found a direct cause of action against state officials for violation of other rights under the Declaration of Rights,53 the court explained:

It is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State. Our Constitution is more detailed and specific than the federal Constitution in the protection of the rights of its citizens. We give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.54

While North Carolina is not unique in finding a direct cause of action for violations of state constitutional rights, other states have declined to do so, or have yet to decide the issue.55 When Corum was decided, there was optimism that it heralded a resurgence of state constitutionalism, distinct from federal constitutional doctrine when it comes to the protection of individual rights.56

Corum remains good law today, but there has not been a robust turn to state constitutional rights by litigants in North Carolina in the thirty years since it was decided.57 A year after Corum, the North Carolina Supreme Court adopted and applied the U.S. Supreme Court’s First Amendment jurisprudence to determine whether a state statute making it a crime to publish anonymous, derogatory statements about candidates for public office violated the state constitution’s Free Speech Clause.58 When considering a later civil action seeking damages against the City of Creedmoor for alleged violations of the plaintiffs’ federal and state constitutional rights to freedom of speech, the North Carolina Supreme Court again examined and applied the U.S. Supreme Court’s First Amendment precedents, without any separate analysis of the analogous state constitutional provisions.59 In implementing the U.S. Supreme Court’s approach, there would be no North Carolina-specific rule for this doctrinal question. Where the state and federal constitutions provide exactly the same protections, from a doctrinal perspective there is only one shot to vindicate individual rights.

To date, the North Carolina Supreme Court has found a direct cause of action under the state constitution by relying on Corum on only three occasions, which averages to once a decade. Two of the cases arose in similar factual circumstances. In Craig v. New Hanover County Board of Education,60the court held that because the plaintiff’s common-law negligence claim against the school board for failing to adequately protect him from a sexual assault by another student was barred by the doctrine of sovereign immunity, he could bring a claim for damages directly under the state constitution.61 In Tully v. City of Wilmington,62the North Carolina Supreme Court concluded that Officer Tully could sue his employer, the City of Wilmington, under Article I, § 1 of the North Carolina Constitution, which provides that “the enjoyment of the fruits of their own labor,” is an inalienable right, for failing to promote him to the rank of sergeant in alleged violation of the Wilmington Police Department’s own written policies.63 Most recently, the court followed Craig in Deminski v. State Board of Education,64 holding that a student can bring a claim for damages for a school board’s deliberate indifference to repeated bullying and sexual harassment by other students under Article I, § 15 and Article IX, § 2 of the North Carolina Constitution.65

This is hardly a record of robust protection of individual rights under the North Carolina Constitution, at least by the state supreme court.66 On occasion, Corum’s requirement that a plaintiff have no other remedy has been the reason that plaintiffs were deemed not entitled to bring a direct action for damages.67 The justification for imposing such a requirement, which has not been a condition in other states,68 flowed from a fundamentally conservative view of the role of the judiciary, a deep respect for the power of the other branches of state government, and the normative conclusion that fashioning a common-law remedy for the violation of a constitutional right is an “extraordinary exercise” of the court’s “inherent constitutional power.”69 The court seemed to be saying, if you push our backs up against the wall and there is no one else who can protect an individual’s constitutional rights, then we will do our duty, while kicking, screaming, and dragging our feet at every step along the way.

Contrast that with the North Carolina Supreme Court’s full-throated endorsement of the judiciary’s role in enforcing the fundamental right to property. In 2016 the Court held that “[t]hough our state constitution does not contain ‘an express constitutional provision against the “taking” or “damaging” of private property for public use’ without payment of just compensation, we have long recognized the existence of a constitutional protection against an uncompensated taking . . . .”70 Despite the lack of a specific provision, the Court concluded that the state constitution’s “law of the land” clause71 encompassed “the fundamental right to just compensation as so grounded in natural law and justice” that it was self-evident.72Therefore, the North Carolina General Assembly’s Map Act, which allowed the Department of Transportation to designate corridors for future road development, without providing for compensation of landowners whose property was affected, was an unconstitutional taking under the state constitution’s law of the land clause.73 The result was to provide over 500 landowners with a right to seek compensation for the decrease in market value of their property that resulted from their physical location in a corridor designated for development, at a cost of hundreds of millions of dollars to the state. In 2020, estimates suggested that the North Carolina Department of Transportation had spent about $600 million settling Map Act lawsuits.74 As of mid-July 2019, the state had reached settlements in approximately 360 Map Act cases, with another 260 cases pending, based upon reports by the Chief Operating Officer, Bobby Lewis, to the Board of Transportation.75 Note that the Court enforced an individual right grounded in common law and not found in any specific constitutional text, overruling a choice the North Carolina General Assembly had made about how property owners could address a decline in property values. There is no principled reason why property rights should have greater protection than the First Amendment rights at stake in Corum or the right to an education at stake in Copper v. Denlinger.

II. the north carolina supreme court’s departure from federal doctrine

The shifting sands of state constitutional analysis in North Carolina make it difficult to argue that state courts are a solid foundation upon which to build a jurisprudence that protects individual rights—at least when it comes to questions of race discrimination and equal protection.

A. Equal Protection: Upward and Downward Departures from Lockstepping

As the discussion above illustrates, although the North Carolina Supreme Court has engaged in lockstepping in some contexts, following federal doctrine to evaluate state constitutional guarantees, it has also departed from it in other instances. This Section will argue that the court’s departure from lockstepping is especially notable in the equal-protection context, where the North Carolina Supreme Court has found greater protection of individual rights in the state constitution than currently recognized under the Federal Constitution in several noteworthy cases, while providing less protection in other cases (especially when related to intentional racial discrimination). The court has acknowledged its authority to construe the North Carolina Constitution’s equal-protection clause to grant greater protections than its federal counterpart,76 but it most recently construed that same provision as granting less protection than the Federal Constitution.77

In Stephenson v. Bartlett,78the court held that “use of both single-member and multi-member districts within the same redistricting plan violates the Equal Protection Clause of the State Constitution unless it is established that inclusion of multi-member districts advances a compelling state interest.”79 Although the one-person, one-vote jurisprudence as a requirement of equal protection in the redistricting context began with the federal courts,80 as the Stephenson court acknowledged, under federal constitutional doctrine it is permissible to include single-member and multi-member districts in the same redistricting plan so long as the relative sizes of the districts ultimately give equal weight to every vote.81 Quoting State v. Carter,82 the Stephenson court pointed out that “[i]t is beyond dispute that this Court ‘has the authority to construe [the State Constitution] differently from the construction by the U.S. Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.’”83 Thus, the court concluded that under the state constitution, equal protection principles required all districts in a redistricting plan to be single-member districts.

There followed several years later the decision in Blankenship v. Bartlett,84 holding that the equal-protection clause of the North Carolina Constitution required that districts drawn for the election of judges be subjected to intermediate scrutiny.85 Acknowledging that the U.S. Supreme Court had explicitly ruled that judicial districts are not subject to the one-person, one-vote requirement under the Federal Equal Protection Clause,86 the North Carolina Supreme Court nevertheless concluded that “[s]tated simply, once the legal right to vote has been established, equal protection requires that the right be administered equally.”87 Blankenship did not specify any bright-line standard for how much judicial districts could deviate in population size before intermediate scrutiny would be triggered.88 While the North Carolina Supreme Court examined various state and federal constitutional precedents, the majority was clear in rejecting a lockstepping approach to state constitutional interpretation, stating instead:

This Court’s analysis of the State Constitution’s Equal Protection Clause generally follows the analysis of the Supreme Court of the United States in interpreting the corresponding federal clause. “However, in the construction of the provision of the State Constitution, the meaning given by the Supreme Court of the United States to even an identical term in the Constitution of the United States is, though highly persuasive, not binding upon this Court.”89

The dissenting opinion in Blankenship pointed out that the court’s interpretation of the Equal Protection Clause to apply to judicial districts was contrary to every other jurisdiction to have considered the issue and stated that this rare unanimity among the numerous courts at every level to have addressed it should have been highly persuasive to the court.90 Also missing from the majority opinion in Blankenship is any discussion of deference to the legislative branch.91 There was no mention of the need to find a statute unconstitutional “beyond a reasonable doubt,” even though this formulation later appears in voting rights opinions of the court as the unquestioned standard of review.92

In 2023, the North Carolina Supreme Court decided again to abandon lockstepping, this time to make clear that the North Carolina Constitution’s equal-protection clause provides less protection than the federal analogue when it comes to proving intentional racial discrimination on the part of governmental actors.93 In a recent voting-rights case, where the trial court found intentional racial discrimination after a full trial on the merits, the court reversed and held that it would not adopt the Arlington Heights94 standard for proving intentional racial discrimination on the grounds that it is “subjective” and therefore too low a bar for plaintiffs alleging racial discrimination.95 Instead, the court applies what it asserts is a more objective, and presumably higher, standard, namely that a challenger “must prove beyond a reasonable doubt that: (1) the law was enacted with discriminatory intent on the part of the legislature, and (2) the law actually produces a meaningful disparate impact along racial lines.”96 Under this new standard, a racially gerrymandered legislative district may not violate the equal-protection clause of the state constitution because a district drawn on the basis of race does not necessarily have any disparate impact on the voting strength of any voters. In Community Success Initiatives, the court also refused to apply the intermediate-scrutiny standard it adopted in Blankenship, even though both cases involved the fundamental right to vote.97

It is usually assumed that federal constitutional doctrine is a floor, not a ceiling, for the protection of individual rights. However, where the U.S. Supreme Court appears ready to roll back rights, as in Dobbs98and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,99 or to fail to enforce its own precedents, as in Clark v. Mississippi,100 it is especially important for state constitutional doctrines to play a role.

B. Raising the Floor for Other Constitutional Rights

In other contexts, the North Carolina Constitution has been a stronger source of individual rights than the Federal Constitution. North Carolina’s Constitution, unlike the Federal Bill of Rights, has multiple references to the right to education, which led the state supreme court to articulate a student’s right to a “sound basic education” over twenty-five years ago in Leandro v. State.101More recently, the court held that a trial court was within its remedial powers to order certain state officials to transfer funds necessary to comply with its orders implementing a comprehensive remedial plan.102 Here, the court interpreted a state constitutional provision that has no federal counterpart.

The North Carolina Supreme Court has also made further doctrinal advancements on certain criminal justice issues than the U.S. Supreme Court. In State v. Kelliher, the state supreme court held that a sentence that required a juvenile to serve fifty years in prison before becoming eligible for parole was a de facto sentence of life without parole under the North Carolina Constitution’s prohibition of cruel or unusual punishment.103 The U.S. Supreme Court has not directly addressed this issue.104

Finally, as a structural matter impacting the right to vote, the North Carolina Supreme Court decided NAACP v. Moore.105 There, the court determined that a legislature elected from racially gerrymandered districts could not place a state constitutional amendment on the ballot for voters if the purpose of that amendment was either to discriminate against voters on the basis of race or to seek to illegitimately maintain their elected offices.106 In doing so, the court concluded that allowing such actions would be inconsistent not only with precedent but also with the North Carolina State Constitution’s fundamental guarantee of a government elected by the people.107 This issue, too, is one without a federal analogue, touching on the uniquely state-law issue of how a state constitution establishes a state government.

C. The Impact of Partisan Politics on State Constitutional Interpretation

Several recent decisions of the North Carolina Supreme Court have included assertions that the constitutional analysis by the majority of the court is a result of partisan commitments rather than the sound application of legal reasoning.108 In Harper v. Hall, the Chief Justice, in dissent, asserted that the majority was “seeking to hide its partisan bias.”109 In a later opinion in that same litigation, another justice, also in dissent, wrote that “the majority’s decision today appears to reflect deeper partisan biases that have no place in a judiciary dedicated to the impartial administration of justice and the rule of law.”110

Litigation over the requirement that voters present photo identification in order to vote has also been politically charged. In 2022, the North Carolina Supreme Court issued its first opinion in Holmes v. Moore, which addressed a statute implementing the state’s new constitutional amendment requiring a voter ID, Senate Bill 824.111 The plaintiffs brought an equal-protection claim pursuant to Article I, Section 19 of the North Carolina Constitution alleging that the “law was enacted at least in part with the intent to discriminate against African-American voters.”112 After analyzing the law under the Arlington Heights factors, the trial court concluded based on the evidence presented in a weeklong trial that S.B. 824 violated the state constitution because it was enacted with discriminatory intent.113 The North Carolina Supreme Court affirmed that ruling. However, in 2023, following the election of a new majority of Republican justices on the court, that new majority granted rehearing and issued a new opinion invalidating the use of the Arlington Heights factors under the state constitution. In doing so, the court ultimately concluded that plaintiffs had “failed to prove beyond a reasonable doubt that S.B. 824 was enacted with discriminatory intent or that [S.B. 824] actually produce[d] a meaningful disparate impact along racial lines.”114

My views on the court’s decision to reverse itself on the fundamental question of whether partisan gerrymandering is justiciable and violates the state constitution within a matter of weeks of an election, as well as its decision to rehear and reverse itself on the question of whether the voter ID law was intentionally racially discriminatory, are set out in my and my colleagues’ dissenting opinions to the court’s orders allowing rehearing.115 It could be asserted that both the 2022 and the 2023 rulings were outcome-driven to favor a particular political party. To ascribe a false equivalency between the opinions and actions of the 2022 court and the 2023 court would do a great disservice to the hundreds of pages of documented factual material and legal reasoning in the trial court’s rulings and the 2022 appellate opinions. In finding that partisan gerrymandering is justiciable, and that extreme partisan gerrymandering violates the state constitution, the 2022 court sought to provide all voters of every political party an equal opportunity to participate in the electoral process. The 2023 court abdicated its responsibility to enforce the state constitution and the rule of law, in favor of one political party that now holds a veto-proof majority in the legislature in a state where the voters are nearly equally divided by any measure of partisan political preferences.116 In the voter ID case, the 2023 court ignored factual findings by the trial court, and imposed a new constitutional standard without allowing the trial court to first apply that standard to the evidence.117

Are the voting rights cases mere aberrations? A review of all the court’s opinions reveals that in recent years the court’s Republican-affiliated justices are less likely to disagree with one another and are more inclined to vote together a majority of the time than Democratic-affiliated justices.118 I was elected to a court that within three months of my joining was comprised of six Democrats and one Republican. Between January 1, 2019 and January 1, 2023, when the court became a court of five Republicans and two Democrats, the North Carolina Supreme Court issued two opinions finding greater protection of individual rights in the state constitution119 and four other opinions grounded solely in state constitutional doctrine.120 To put this in context, the court issued a total of 557 opinions during this period.121

When the court was four Democrats and three Republicans, from January 1, 2021 to December 31, 2022, the court issued opinions in 313 cases. In 213 of those cases, the court was unanimous.122 In seven cases, the Republican members of the court disagreed with each other.123 In forty-six cases, the Democratic members of the court disagreed.124 The court was split along party lines only thirty-nine times, and there were eight cases where both the Democrats and Republicans disagreed with each other.125 Republicans on the court voted together almost all the time, whereas Democrats did not.

It is important to know the court’s record, but I ultimately agree with Judge Sutton that failing to raise state constitutional claims is like voluntarily giving up a free throw. If advocates choose not to bring state constitutional claims seeking to vindicate individual rights, those rights under the state constitution will have no meaning. Even if the claims are unsuccessful, a path is laid for future efforts. The failures of the law today can be corrected in the future. The basket may be higher, and one might miss the shot, but being in the game makes a difference.

III. ensuring increased protection of individual rights under state constitutions

State courts and litigants need to consider state constitutional guarantees of individual and civil rights. Here I suggest two prescriptions. The first is for state courts to own the freedom they hold to decide state constitutional questions independently from how the U.S. Supreme Court interprets parallel provisions in the Federal Constitution. Put another way, while state courts must treat the Federal Constitution as a floor, they should not reflexively fall back on lockstepping or otherwise respond to changes in federal constitutional caselaw that restrict individual rights by making corresponding downward shifts in their own state constitutional jurisprudence. When state courts perceive the need to expand individual protections under their own state constitutions but fail to do so, they undermine a litigant’s ability to have “two shots” at the free throw. In the end, this effectively removes the state constitutional basket from the equation, forcing litigants to argue and defend their claims under federal law.

Next, it is important to build a legal culture that values the role of state courts in interpreting their own constitutional doctrines. A widespread shift in attitudes among relevant stakeholders that seeks to support the expansion of individual rights under state constitutions could encourage litigants to take “two shots” at the free-throw line, one into the Federal Constitution basket, and another into the state constitution basket. Support for the role that state constitutions play in expanding individual rights could come from at least four sources: (1) legal opinions that acknowledge the role of state courts in protecting individual rights; (2) state courts’ own acknowledgment of the responsibility they have to shape individual rights under their constitutions; (3) legal education that focuses on state constitutional protections; and (4) practicing attorneys who bring claims on behalf of their clients under their respective state constitutions.

Chief Justice Roberts’s opinion in Rucho is an example of the first source. There, he concluded that state constitutions and state statutes have a role to play in curbing political gerrymandering; while the Federal Constitution may have limitations in this regard, state courts interpreting their own laws may not be restricted by these limitations.126 An increased awareness of the role state constitutions can play in protecting individual rights might also come from state supreme courts themselves. Just as retired Justice Martin explained, state supreme courts must seize the opportunity to expand individual rights whenever the occasion is provided. In doing so, courts will develop a “unique corpus juris” that is uniquely attuned to the “needs and concerns of the state, and stands safe from the vicissitudes of the United States Supreme Court.”127

Furthermore, law schools could also take a more active role in teaching students about the importance of state constitutions, and what can be gained when claims involving individual rights are brought under state constitutional provisions. Constitutional law courses, which cover the Federal Constitution’s Bill of Rights, may be particularly well suited to teach the parallel provisions of their state constitutions, while also pointing out the way in which their respective state constitution grants additional rights.

Lastly, practicing attorneys who seek to preserve or expand their client’s individual rights play a significant role in supporting the two-basket approach. Courts are usually inclined to consider and issue opinions on the issues raised by the parties in a case. Thus, without clients who seek to vindicate those rights arising under their state constitutions, and attorneys who are prepared to bring these claims pursuant to state law, each state’s respective constitutional legal doctrine cannot advance. Expanding the use of state courts to protect constitutional rights must be a joint effort between all relevant stakeholders: federal and state judges, academics, and practicing attorneys who shape the claims they bring on behalf of their clients.


Ultimately, state constitutions can be a powerful tool for protecting individual rights. Whether this notion can be realized is subject to a myriad of influences, ranging from the type of right implicated to the political composition of a court. However, with the participation of all relevant stakeholders, individual rights arising under state constitutions can be protected and broadened beyond what is currently understood to be encompassed by the U.S. Constitution. The experience in North Carolina suggests that state constitutional doctrine has left the door open, but much more needs to be done to realize the two-shot potential at the free-throw line.

Justice Anita Earls, Associate Justice, North Carolina Supreme Court.

I wish to acknowledge the important contributions to this Essay from my talented and brilliant law clerk Nicole Tashovski and express my appreciation to the editors of the Yale Law Journal Forum. Their engagement with the arguments here has been tremendously helpful and enlightening to me.