North Carolina's legislative maps are unconstitutional, court rules

Earlier this year, the U.S. Supreme Court ruled that "partisan gerrymandering claims present political questions beyond the reach of federal courts," but acknowledged that these claims can be addressed at the state level or by Congress.

On Sept. 3, a three-judge panel of the Wake County Superior Court did just that. 

In Common Cause, et al. v. Lewis, the judges unanimously ruled that North Carolina’s legislative maps are unconstitutional, citing the Free Elections Clause of the N.C. Constitution in their decision.

“It is not the free will of the People that is fairly ascertained through extreme partisan gerrymandering,” they said. “Rather, it is the carefully crafted will of the map drawer that predominates.”

The court found that when enacting the 2017 legislative maps, the N.C. General Assembly had a partisan interest to create maps that preserved Republican control. Partisan intent, the court said, prevailed over all other redistricting criteria and ensured Republican control over the General Assembly in all but the most unusual election scenarios.

The court ruled that the defendants offered no meaningful defense of the 2017 maps, rejecting criticisms of the plaintiffs’ witnesses and the argument that the plaintiffs sought proportional representation. It also recognized that no witnesses for the defense denied that the 2017 maps are intentional and effective partisan gerrymanders. 

The General Assembly was ordered to enact remedial maps within two weeks, a process which must be conducted in full public view. Legislators must avoid pairing incumbents unduly in the same election district and are forbidden from factoring election data or previous maps into the redistricting process. The maps must comply with the Voting Rights Act and other federal requirements concerning the racial composition of districts. 

Bob Phillips, the executive director of Common Cause NC, said in a statement that the ruling is a historic victory. 

“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,” he said.

The Daily Tar Heel did not receive a response to its request for comment from Rep. David Lewis.

Republican N.C. Senate President Pro Tempore Phil Berger said in a statement the General Assembly will follow the court’s instruction and create a nonpartisan map.

"We disagree with the court’s ruling as it contradicts the Constitution and binding legal precedent, but we intend to respect the court's decision and finally put this divisive battle behind us,” he said. “Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point.”

Michael Bitzer, a professor of politics and history at Catawba College, said the Democratic Party in North Carolina hopes to gain control of at least one chamber of the General Assembly in 2020 in order to take part in 2021 redistricting. 

He said it’ll be interesting to see how the legislature handles nonpartisan redistricting, given that many communities are sorted politically.

Brian Irving, the Libertarian Party of North Carolina’s liaison to the Fair Districts NC Coalition, said in a statement he is grateful for the ruling but believes a fully independent redistricting commission should redraw the maps, as outlined in Senate Bill 673.

“Placing the execution of this new ruling in the hands of the legislature is asking the foxes to redesign the henhouse — again,” he said. “The point of ‘fair districts’ is to give voters fair representation, not to give two entrenched parties a fair chance to divvy up the vote.”

Bitzer said judicial federalism – when federal and state court give different rulings – will be important in future partisan gerrymandering state challenges, particularly post-Common Cause v. Lewis.

“This particular decision continues the opportunity for states, and especially state courts, to recognize that there are perhaps fundamental rights that should be protected at the state level that may not necessarily be protected at the federal level,” he said.

Karen Hobert Flynn, the president of Common Cause, emphasized in a statement that partisan gerrymandering battles do not end with the Common Cause v. Lewis ruling. 

“In other states the fight will go on in state courts, in legislatures and through ballot initiatives to ensure every voter across this country has a voice at the polls,” she said. “Common Cause will be relentless in continuing our fight to end partisan gerrymandering once and for all.”

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