North Carolina’s political future hangs on arguments made before the state Supreme Court Wednesday morning.
The seven justices, four Democrats and three Republicans, will judge the meaning and limits of the state constitution to determine whether it protects against “extreme” partisan gerrymandering.
Chief Justice Paul Newby, a Republican, signaled with his questions that he’s dubious of claims the court should intervene. He asked how well experts who used election simulations to show the maps favored Republicans can really predict election results and what standard the courts could use to decide qualifies as extreme.
All four Democratic justices asked questions of the legislative defendants, each signaling some cause and authority for judicial intervention. Anita Earls and Samuel Ervin interjected most often, asking why defendants thought they needed a bright line between what is allowable partisan gerrymandering and what could be unconstitutional.
That partisan gerrymandering is finally in front of the Democratic-majority N.C. Supreme Court means the justices have the opportunity to set a long-standing precedent to limit — or give free rein to — partisan interest in drawing political maps.
Path to the Supreme Court
No appellate court in North Carolina has addressed this question, though the cycle of partisan gerrymandering going back several decades has seemingly built to this point.
When the U.S. Supreme Court decided in the 2019 Common Cause v. Rucho case that federal courts couldn’t intervene in partisan gerrymandering, the fights turned to the state courts.
That same year, a three-judge panel in state Superior Court decided North Carolina’s 2017 Republican-drawn maps were unconstitutional due to extreme partisan gerrymandering. The 2017 maps were themselves a redraw of 2011 maps that the federal courts said were unconstitutional racial gerrymanders, but the federal courts have never ruled on partisan gerrymandering.
The 2019 Superior Court ruling found that extreme partisan gerrymandering, or drawing political maps to strongly favor one political party’s chances of holding power, violated the state’s constitution.
Neither the Republican legislative majority in 2019 nor the Democratic legislative majority in earlier cases have ever appealed decisions about partisan gerrymandering, so North Carolina lacks case law at the appellate level on the question.
The Republican legislators who drew the maps over the last decade and whose leaders are the defendants in these cases waited for the 2020 census to give them another shot to redraw political maps for the state legislature and U.S. congressional seats. The 2020 census also increased the number of U.S. House seats in North Carolina to 14.
In November, legislative Republicans unveiled their new maps. Almost immediately, three groups sued to block them from being used, arguing the maps discriminated against Democratic and Black voters, because the maps would effectively lock the largely white-voter-backed Republican Party into power indefinitely.
This time, a new three-judge panel in Superior Court ruled on Jan. 11 in favor of Republicans. The judges’ ruling began by agreeing with the 2019 decision, that “excessive partisanship in districting leads to results incompatible with democratic principles,” but came to a polar opposite conclusion.
The state constitution left redistricting, or the process of drawing political maps, entirely up to the legislature, the panel decided, saying there’s nothing in the state constitution to block that.
The three groups opposing the maps disagreed and immediately appealed, leading to Wednesday’s hearing.
The lower court scheduled candidate filing to reopen on Feb. 24. Should the high court side with the plaintiffs, that would leave little time to decide the case and draw new maps that will be used at least for the 2022 elections, if not for the rest of the decade.
Justices could decide they need more time for this process and push back candidate filing, and the May 17 primaries, yet again.
There could potentially even be an appeal to the U.S. Supreme Court, though no party has yet indicated they would go this direction and it would only include the decision over the U.S. congressional maps since they’re covered under the federal Constitution.
All parties agree that the decision will decide the future of North Carolina’s democracy.
Republican legislative defendants argued that the state constitution gives the legislature the sole right to draw the maps, and North Carolinians elected Republicans to power. The court intervening would violate the separation of powers and interfere in the democratic process, according to the Republican case.
Republicans claim they did not use partisan or racial data in drawing the maps. The criteria they used prohibited that data. But Rep. Destin Hall, R-Caldwell, admitted under oath he used “concept maps” that had since been “lost or destroyed” to guide his hand in drawing maps for the state House.
If Republicans win the case, expert analyses presented in the Superior Court hearing show that Republicans will have a distinct advantage in elections to control both the state legislature and the North Carolina delegation to the U.S. House.
Even with a slight majority of votes in the state, Republicans could have enough seats in the state legislature to bypass any vetoes from the governor and win 11 of 14 Congressional seats.
During Wednesday’s hearing, Newby questioned those political predictions, pointing to the 2010 elections in which Republicans won a significant majority of seats despite North Carolina’s maps favoring Democrats.
Mapmakers have gotten better in the last 10 years at drawing maps “with surgical precision” to target voters, said Stanton Jones, a lawyer for the Harper plaintiffs, who are backed by the Democratic Party-affiliated National Redistricting Foundation.
“These maps were intentionally drawn to maximize Republican advantage, and they have that effect in ensuring, in predetermining election outcomes,” Jones said.
Democrats would have to win up to 56% of the statewide vote to break even, those same analyses show.
That kind of political entrenchment violates state constitutional guarantees of free elections, equal protection, freedom of assembly and free speech, the plaintiffs argue.
In response, Phil Strach, lawyer for the Republican legislative defendants, said plaintiffs can’t prove their case because they did not define a clear line of what is “extreme” partisan gerrymandering versus what is acceptable partisan interest. It would be improper for the court to make up its own standards, Strach argued.
“The court’s going to have to make several policy decisions that do not currently exist, it’s literally going to have to create them out of whole cloth, in a way that the legislature would normally do,” Strach said.
The only states in which courts can limit partisan gerrymandering are those that have explicit language to that effect in their constitutions or in states that have given redistricting authority over to independent commissions, Strach argued. North Carolina has no such language in its constitution.
If that argument were to take hold in state courts across the country, only 21 states would be able to monitor the redistricting process for extreme partisanship, according to data from Ballotpedia and the National Conference of State Legislatures.
In North Carolina, voters have no other recourse to block extreme partisan gerrymandering other than the courts. The governor cannot veto political maps, and there is no provision for voters to put constitutional amendments on the ballot.
But several Democratic justices disagreed with Strach’s argument and pointed to tests that federal courts have created to measure racial gerrymandering.
Strach warned that the public would see the court as partisan should it interfere. Democratic Justice Earls asked, rhetorically, if it wasn’t the court’s “obligation to read the state constitution” and issue a decision “whatever the public may or may not think about that?”
One group of plaintiffs, the good-governance group Common Cause, argued on Wednesday that the partisan gerrymander also targeted Black voters, creating a racial gerrymander.
“To be clear, this legislature could not have as extreme a partisan gerrymander had Black districts in Eastern North Carolina not been attacked,” said Allison Riggs, the lead voting rights lawyer for the Southern Coalition for Social Justice, which is representing Common Cause.
While one section of the Constitution gives the legislature the power to draw political maps, these other sections limit the legislature from abusing its power, the plaintiffs argue.
Newby said this is where the argument gets into separation-of-powers issues.
Now, all North Carolinians can do is wait for the seven justices to decide how much power they have to force changes in the state’s election maps.