North Carolina’s state legislative maps are unconstitutional partisan gerrymanders, said a special three-judge panel last week, and must be redrawn immediately to fix that bias. Partisan gerrymandering is when districts are drawn specifically and systematically for the purpose of elevating candidates of one political party over all opponents.
The case, Common Cause v. Lewis, challenged maps drawn in 2017 to replace the previously invalidated 2011 maps, which a court had ruled were a racial gerrymander. The 2011 maps were used in the 2012 through 2016 elections, and the 2017 maps produced the General Assembly now in power following the 2018 elections. The court in the Common Cause case decided those 2017 maps are still a violation of the North Carolina state constitution, this time because of partisan rather than racial gerrymandering concerns.
In fact, this is the first time a map has been challenged in a state court on partisan gerrymandering claims. After a recent U.S. Supreme Court ruling refused to create a legal standard to judge districts for partisan bias, and essentially put the ball in state courts’…court, this state case began moving.
The court retained the option of delaying 2020 candidate filing currently scheduled for early December, as well as March’s primary elections, if necessary. But recognizing the General Assembly has repeatedly used delay tactics to preserve its skewed maps for the last decade, the court is trying to expedite the map redraw. They mandated the legislature complete new maps in just two weeks (September 18). At that point, an expert “referee” appointed by the court will evaluate the new maps under the criteria laid out in the court order, and will draw its own maps if the legislature’s don’t pass muster.
The court’s ruling was unanimous, including hundreds of pages of factual findings based on witness testimony and documentary evidence.
This decision is likely to stick, and produce a dramatic victory for genuine democracy in North Carolina. For the first time in a decade, a North Carolina state legislature elected in 2020 should be chosen under fairly drawn and mostly competitive district maps. Environmental advocates will be able to have their issues heard, and potentially affect the outcome in many more legislative races around the state.
“This is a historic victory for the people of North Carolina. The court has made clear that partisan gerrymandering violates our state’s constitution and is unacceptable. Thanks to the court’s landmark decision, politicians in Raleigh will no longer be able to rig our elections through partisan gerrymandering,” said Bob Phillips, executive director of Common Cause NC (the lead plaintiff in the case). “What’s crucial now is ensuring that the legislature fully complies with the court’s order and draws new legislative districts in a timely fashion, with full transparency and robust public input, absolutely free from gerrymandering.”
NCLCV also strongly supports the elimination of partisan gerrymandering. NCLCV believes that when voters have the opportunity to choose representatives in competitive elections, they overwhelmingly prefer candidates who favor strong environmental safeguards.
The court’s order set out specific criteria under which those new maps would be judged, including:
- Neither partisan data nor previous election results can be considered in drawing the new district lines
- No attempt may be made to favor voters or candidates of any political party
- The invalidated 2017 maps are not to be used as a starting point or reference
- The districts are to be compact, minimize split precincts, be contiguous, and generally respect county lines. Other factors required by federal law must also be used, such as maintaining equal population and not diluting the influence of minority voters.
Skeptical observers may ask why they should view this latest court decision as any more likely to be final than the several which preceded it over the past decade. There are several key factors:
- Most importantly, this case is being decided in North Carolina state courts, and interpreting the North Carolina state constitution. All the previous cases were in federal court, interpreting federal law and U.S. constitutional provisions.
- In its most recent decision on partisan gerrymandering, the U.S. Supreme Court ruled that it had no role under the U.S. Constitution in dealing with extreme partisan gerrymandering. However, that court also said that state courts, interpreting state constitutional law, could decide differently.
- While any decision of a state Supreme Court can in theory be appealed to the U.S. Supreme Court, it would be extraordinary for that court to review a decision based entirely on the interpretation of state constitutional provisions. That is especially the case when the U.S. Supreme Court has already indicated that state constitutions can go further than the U.S. Constitution in restricting partisan gerrymandering. Therefore, the U.S. Supreme Court is considered unlikely to accept this case for review. The state Supreme Court is likely to be the final decision-maker in this case, though legislative defendants have said they will not appeal this ruling, at least not yet.
There is still a great deal of “devil in the details” work to be finished here. The current legislative leadership is likely to push back, testing the limits of what the state court panel will let them do. To ensure that its instructions are carried out, the court panel will have to analyze the legislature’s new maps rigorously, and change them without hesitation where they fail to meet the court’s standards. At that point, legislative defendants may appeal to the state Supreme Court, and if they are unsuccessful there, try to get U.S. Supreme Court review.
Stayed tuned for yet another entertaining few months of high-stakes legal and political maneuverings in the North Carolina partisan gerrymandering saga.
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