North Carolina’s Legislative Maps Are Thrown Out by State Court Panel

In a major blow to Republicans who control the Legislature in one of the nation’s most bitterly divided states, a state court panel threw out North Carolina’s state legislative maps as an unconstitutional partisan gerrymander and ordered lawmakers to draw up new ones in two weeks.

The ruling Tuesday by a three-judge panel in Raleigh had the potential to bring to a decisive end a yearslong battle over gerrymandering in a critical swing state and indicated that state courts could act to rein in patently partisan electoral maps after the U.S. Supreme Court ruled in June, 5-4, that federal courts could not.

The Republican leader of the state Senate, Phil Berger, cast the decision as part of a national Democratic strategy to overturn Republican rule via the courts but said the Legislature would not appeal the ruling. The North Carolina Supreme Court, which would hear any appeal, has six Democratic justices and one Republican.

“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,” Berger said in a statement. “It’s time to move on.”

But Democrats and the voting rights advocacy groups who challenged North Carolina’s maps were giddy over what they depicted as a vital victory for fair electoral maps.

“Our heads are spinning here in North Carolina,” said Bob Phillips, executive director of Common Cause North Carolina, which filed the suit. “It’s a huge win, particularly for the voters of North Carolina, just to know that this entire decade they have never had an opportunity to actually vote for legislators in constitutional districts.”

And the effects of the ruling, which requires new maps to be drawn and approved by Sept. 18, could go beyond state legislative maps. Stanton Jones, lead lawyer for the plaintiffs, said that the principles of the decision would also be applicable to the congressional map for the House of Representatives but that a new lawsuit would be required to overturn it.

The 357-page ruling is the first major decision on partisan maps since the U.S. Supreme Court ruled in June that even the most extreme gerrymandered maps were beyond its jurisdiction. While the federal Constitution limited the Supreme Court’s authority over partisan maps, Chief Justice John Roberts wrote then, state constitutions could “provide standards and guidance for state courts to apply.”

The North Carolina court in Wake County said the Republican maps violate the state constitution’s clauses guaranteeing free elections, equal protection under the law and freedom of speech and assembly. Pennsylvania’s Supreme Court cited provisions of its constitution in striking down the state’s congressional map in January 2018.

Tuesday’s decision, issued unanimously by two Democratic judges and one Republican, appears to end a legal battle over the legislative maps that already had forced the redrawing of 28 districts that a federal court had found to be racial gerrymanders. Since Republicans drew the legislative boundaries eight years ago, the party has maintained healthy majorities — and often supermajorities — in the state House and the state Senate, even when Democrats won a majority of the vote statewide.

While the debate over gerrymandering has taken on a bitter partisan cast in recent years, the North Carolina judges went out of their way to make clear that their ruling was based on the law, not politics.

“The conclusions of this Court today reflect the unanimous and best efforts of the undersigned trial judges — each hailing from different geographic regions and each with differing ideological and political outlooks — to apply core constitutional principles to this complex and divisive topic,” the judges wrote in their decision.

The judges’ ruling threw out state House and Senate maps that had been contested in state and federal courts almost since their enactment in 2011. To draw them, Republicans who had taken control of the Legislature after the 2010 elections hired a Republican political strategist, Thomas B. Hofeller, who was renowned for his skill in drafting partisan gerrymanders. Democrats in the Legislature were not allowed to meet Hofeller and had no role in the maps’ creation.

The Republicans turned again to Hofeller in 2017, after federal courts ruled that 28 of the districts he had created were racial gerrymanders and had to be redrawn. Seeking to avoid further charges of racial bias, legislative leaders told a federal court that racial statistics would not be used in drafting the new districts, although partisan data like past election results would.

The resulting maps were summarized for Republican legislators in so-called stat packs that forecast the new districts’ partisan leanings using results from 10 previous statewide elections. By that yardstick, the judges said, Republicans would have won the House and Senate supermajority in each of those 10 elections had the new districts been in effect.

And in fact, even after a strong Democratic turnout in last November’s midterm elections relegated Republicans to a minority of the vote statewide, the party still held on to 54% of state House seats and 58% of state Senate seats.

During the trial, the plaintiffs also claimed that Republican leaders misled the federal court when they claimed that race played no role in drawing the new districts. Rather, they said, data found on Hofeller’s computer backups after his death in August 2018 showed that he had calculated the racial balance of every new district.

Arguments by Republican leaders that those were after-the-fact checks of the districts’ racial composition were “not credible for multiple reasons,” the judges wrote.

In outlawing the partisan maps, the judges relied heavily on a broad reading of Section 10 of the state constitution, which states in its entirety that “All elections shall be free.” While higher state courts have said little about the clause, they wrote, other rulings have made it clear that citizens express their will at the ballot box and that the state has a compelling interest in keeping the vote fair. “The free elections clause of the North Carolina constitution guarantees that all elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people,” the judges wrote. But “it is not the free will of the people that is fairly ascertained through extreme partisan gerrymandering. Rather, it is the carefully crafted will of the map drawer that predominates.”

The ruling could persuade anti-gerrymandering forces in other states to battle partisan maps in state courts after the next round of redistricting in 2021, said Joshua Douglas, a University of Kentucky law professor and an expert on state constitutions and elections law. Roughly half of state constitutions have free election clauses, and all but one state have right-to-vote guarantees that also open a window to challenges to partisan maps.

“Given that the federal courts are closed,” he said, “I certainly expect this model to be used in other states where there are egregious partisan gerrymanders.”