All Eyes Are on a Lawsuit in North Carolina, Where the Fate of the House Majority May Be Decided
Final arguments were heard yesterday before a three-judge panel of the Superior Court in North Carolina in a case challenging the 2021 congressional maps for the state. Those maps, through extreme gerrymandering, would deliver a whopping 10 of the 14 congressional districts safely to Republicans even though North Carolina is nearly evenly split politically. Each and every one of the proposed Congressional districts either “cracks” Democratic bases into parts to dilute their impact or “packs” Democratic voters together to waste their votes. If upheld, the GOP stands to gain at least two and possibly three new seats in the House, so the stakes in this case are very high for the nation.
Even though the U.S. Supreme Court has washed its hands of gerrymander cases at the federal level, many states have their own state-level constitutional protections ensuring the right to vote. In North Carolina, for example, the right to vote is guaranteed in the “Free Elections Clause” of the state constitution, which has no federal counterpart and states simply that “All elections shall be free.” In interpreting this clause, the state Supreme Court admonished as early as 1897 in State ex rel. Quinn v. Lattimore that courts “should keep in mind that this is a government of the people, in which the will of the people—the majority—legally expressed, must govern.”
Voting rights advocates are now hoping for relief from the state courts in North Carolina, which lately have taken a poor view of maps drawn to ensconce political power. “[P]artisan gerrymandering …strikes at the heart” of the principles set out in Lattimore, wrote the court in Common Cause v. Lewis in 2019. Another judicial panel in the case of Harper v. Lewin granted a preliminary injunction that same year against a 2016 map which also would have also handed 10 safe seats to the Republicans, writing that ‘redistricting plans that entrench politicians in power, that evince a fundamental mistrust of voters by serving the self-interest of political parties over the public good, and that dilute and devalue votes of some citizens compared to others” are “contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”
In the current case, most of GOP legislators reportedly invoked “legislative privilege” to avoid testifying about how the maps came to be. The plaintiffs showed that in order to pull off this feat of extreme gerrymandering, the GOP would have had to deploy complex computer algorithms to draw these maps and that the process was hijacked and subverted by partisan operatives who brought their own maps from outside consultants into the map-drawing process.
The three-judge panel on the case, comprising two Republicans and one Democrat, will make factual findings and decide whether or not to grant the plaintiffs’ request for an injunction. But ultimately the matter will head to the state Supreme Court, which has four Democrats and three Republicans on it. Rulings so far on gerrymander cases reportedly have reflected the political leanings of the courts hearing them, with the Republican majority N.C. Court of Appeals declining to delay the 2022 primaries while the maps were litigated, but the state supreme court stepping in to delay them to March of 2022 while fast-tracking the litigation.
If the state Supreme Court does enjoin the maps from being used, that would kick it back to the GOP-controlled legislature to create a new map. While defendants claim there wouldn’t be enough time to make new maps, but when a similar injunction was issued in 2019 the General Assembly created and passed new congressional districts just two and half weeks later. Alternatively, the Supreme Court could order the primaries moved back even further to give more time for new maps to be drawn. And if necessary, the Supreme Court could entirely oversee a remedial process for the map drawing.
In a fairer world, an evenly split North Carolina electorate would have closer to seven GOP and seven Democratic House seats, instead of 10 or 11 GOP and only three or four Democratic ones. Moreover, the new seat assigned to North Carolina by the census came from population growth nearly entirely within blue urban centers, so for the GOP to gain a seat from Democratic population growth seems unjust and unfair. To allow the maps to remain in place for the 2022 election, plaintiffs argued, would be to reward behavior that willfully violates the Free Elections Clause of the state constitution.
We will soon see if the North Carolina courts agree. The three-judge panel’s ruling is expected out next week by January 11.
If you go back 4 years and look at the efforts of the Republican Party in the state of North Carolina you'll see a succession of legal challenges to the redistricting efforts of the Democrats. Each and every time the D's won their decisions were 'challenged', both at local State and Federal and Appellate courts, causing so much of a delay that when the final appeal was made (which lost) the judge simply declared it was too close to election time to make the changes. It's the finest example of what has been named 'weaponizing the courts, and is one of the most onerous burdens the courts (and the public) have to tolerate. I don't know what the solution is but this privileged access to the endless appeals has to be moderated somehow.
Texas has done the same gerrymandering. Despite the population increase from urban and minority voters only, the Republicans have created more secure red districts and combined the minority growth into fewer districts.