by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
As reported at The Carolina Journal, North Carolina’s legislative leaders filed petitions last week asking the N.C. Supreme Court to rehear two cases in which the court’s outgoing Democratic majority ruled against Republican legislators on election maps and voter ID. The cases are Harper v. Hall and Holmes v. Moore. Readers who were surprised by this development asked, “How common is this?” and “Is this a thing?” The answer is that while such petitions are unusual, they are definitely a thing.
Rule 31 of the N.C. Rules of Appellate Procedure states:
A petition for rehearing may be filed in a civil action within fifteen days after the mandate of the court has been issued. The petition shall state with particularity the points of fact or law that, in the opinion of the petitioner, the court has overlooked or misapprehended and shall contain such argument in support of the petition as petitioner desires to present.
Petitions for rehearing are rare because the fifteen day time limit usually means the requested rehearing would take place before the same judge or panel of judges that made the original decision. Unless significant new evidence or arguments have suddenly become available, it’s highly unlikely that court would change its mind.
That’s not the case for Harper v. Hall and Holmes v. Moore, however. A court’s mandate consists of “certified copies of its judgment and of its opinion and any direction of its clerk as to costs.” Such mandates usually issue 20 days after an opinion is handed down. The N.C. Supreme Court handed down its opinions in Harper and Holmes on Dec. 16, 2022, just before the end of the session and just before the end of the court’s Democratic majority. The court’s mandates in those cases issued on Jan. 5.
As a result, the petitions filed on Jan. 20 will be considered by a new panel of justices with a Republican majority. If that majority votes to grant the petition, the legislative leaders will have a chance to make their case to a panel of justices that is likely to reach quite a different conclusion.