What two contradictory redistricting decisions could tell us about this week's Supreme Court showdown
Posted January 30, 2022 6:00 a.m. EST
When North Carolina’s latest redistricting case comes before the state Supreme Court for oral arguments Wednesday, the core issue probably won’t be whether Republican lawmakers drew voting maps meant to help them get re-elected and hold political power.
It may be whether the court can do anything about it.
Based on the state’s two most recent decisions in partisan redistricting cases, that’s a coin flip.
The case could decide who wields political power in the state for years to come. Voting rights groups sued state Republican leaders, saying the maps they approved late last year are unconstitutional. Republicans have said they complied with map-drawing guidelines when they created the congressional and state legislative districts.
A bipartisan, unanimous, three-judge panel in the case ruled in Superior Court this month that courts don’t have the power to rein in the General Assembly’s map making, despite ample evidence of a gerrymander and even though the judges said too much partisanship in redistricting “leads to results that are incompatible with democratic principles.”
But in 2019, with a strikingly similar set of facts, another bipartisan, unanimous, three-judge Superior Court panel went the other way in a different case, ordering new maps ahead of that year’s elections.
“Such extreme partisan gerrymanders violate the fundamental constitutional rights of free elections, equal protection, speech, assembly and association,” the judges said in that case, Common Cause v. Lewis. “It is the court’s duty to say so.”
That a pair of lower court rulings could be so contradictory didn’t surprise legal experts. Sorting out these sorts of differences, they said, is what Supreme Courts are for.
In doing that in the coming weeks, North Carolina’s high court could set far-reaching precedent over the state’s map-making process, potentially limiting how legislative majorities can use sophisticated computer software and data on people’s voting habits to draw safe districts for members of their political parties. This process, known as gerrymandering, lets lawmakers lock in party power at the General Assembly, and within the state’s congressional delegation.
Or the court may wash its hands of the issue, leaving whichever political party controls the state legislature—the governor has no control over redistricting in North Carolina—to draw maps as they see fit, provided they don’t run afoul of separate rules limiting racial, as opposed to partisan, gerrymanders.
The key will be what the state’s Supreme Court justices decide the state constitution says.
The new legislative boundaries could make it easier for the GOP to regain super majorities, thus allowing Republican lawmakers to turn bills into law without the support of Democratic Gov. Roy Cooper. And in a state that is nearly evenly split politically, the congressional map is likely to give Republicans 10 or 11 of the 14 U.S. House seats up for grabs.
The North Carolina Constitution says lawmakers must redraw legislative districts after every census, that each district must contain roughly the same number of people, that each one must be a single, contiguous area, and that they can’t be redrawn again until there’s another census. It also says lawmakers can’t divide counties, but this rule has morphed due to decisions in federal lawsuits requiring some divisions.
Other than that, the constitution doesn’t lay out specific rules. But a coalition of progressive groups, as well as North Carolina’s Democratic governor, attorney general and others who’ve weighed in on the case, argue that the constitution’s various guarantees—of free elections, equal protection and freedom of speech and assembly—implicitly limit how much the General Assembly can tinker with the state’s House, Senate and U.S. House of Representatives districts.
The plaintiffs argue that when lawmakers draw district lines to entrench their party in power—“packing” voters for the other party into a few districts and “cracking” them into others to limit their numbers—they unconstitutionally dilute the other side’s voting power.
“Where the ruling party has manipulated the redistricting plan to ensure that it remains in control of government, elections are not ‘free,’ ” one of the three sets of plaintiffs in the current case, Harper v. Hall, said in a recent brief.
The lower courts have been back and forth on what these constitutional clauses mean when it comes to redistricting.
“Allowing the General Assembly discretion to establish its own redistricting criteria and craft maps accordingly is what the North Carolina Constitution requires,” judges wrote in the 2019 case. “Systematically packing and cracking voters to the extent that their votes are subordinated and devalued for no legitimate governmental purpose, but rather the purposes of entrenching a political party in power, is what the North Carolina Constitution forbids.”
And this is what judges said three weeks ago, in the case now before the high court: “It is one of the purest political questions which the legislature alone is allowed to answer. Were we as a court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government.”
Constitutions are, by their nature, written in general terms. They’re not meant to lay out granular rules on redistricting, or most other issues, said Michael Crowell, a lawyer and retired UNC School of Government professor who is an expert in constitutional law and voting rights.
“And that’s what the courts are about,” Crowell told WRAL News. “Figuring out what those general terms mean and whether the meaning changes over time.”
The state’s high court hasn’t just been asked whether the constitution allows judges to step in over partisan gerrymanders. It’s being asked to determine whether there are reasonable standards that future judges can use to decide how far lawmakers are allowed to go.
Put another way: “How much can we rely on mathematics?” Crowell said.
At trial, mathematicians and political scientists testified that trillions of maps drawn by computer algorithms, then compared to the actual maps Republicans lawmakers drew last year, showed the GOP maps to be clear outliers, only possible to draw if the intent was to favor Republican candidates.
Here’s how the plaintiffs described those results in a Supreme Court briefing: “The trial court found that the congressional and House plans were more carefully crafted to ensure partisan advantage than over 99.9999% (and the Senate plan, more than 99.99%) of the trillions of simulated plans drawn using the General Assembly’s own redistricting criteria.”
Attorneys for the Republican side argue that the plaintiff’s mathematicians fudged the criteria in places, but they don’t dispute that the maps GOP leaders approved favor Republicans.
In dealing with these issues, the lower-court in Harper v. Hall leaned on a 2019 U.S. Supreme Court decision on redistricting, which said “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The North Carolina panel acknowledged it had not been asked to end all partisan gerrymandering, only “extreme partisan gerrymandering,” but the judges struggled to find a methodology to do so.
If a lot of gerrymandering is unconstitutional, the judges wrote, then a little bit is, too, since “no voter should suffer from the effects”
“This Court determines that satisfactory and manageable criteria or standards do not exist for judicial determination of the issue, and thus the partisan gerrymandering claims present a political issue beyond our reach,” the judges wrote.
Again, judges in the 2019 case went the other way.
“When the court is presented with evidence of the scope and quality proffered by plaintiffs that shows widespread and extreme partisan gerrymandering—multiple districts showing a greater partisan skew than any of 3,000 randomly generated maps (all with the state’s political geography and districting criteria built in)—the standard is indeed clear and manageable,” the judges wrote.
Race an issue, too
Two of the plaintiff groups in the current case, Common Cause and the N.C. League of Conservation Voters, have also alleged racial gerrymandering, saying Republican maps dilute the voting strength of Black North Carolinians and violate the state constitution’s equal protection clause.
The lower court rejected this argument, saying the groups failed to prove that “race was the predominant motive behind the way in which the enacted plans were drawn.”
“Plaintiffs have shown, and the Court agrees, that a substantial number of Black voters are affiliated with the Democratic Party,” the panel said. “What plaintiffs have not shown, however, is how the General Assembly targeted this group on the basis of race instead of partisanship.”
Racial and partisan gerrymandering claims often go hand in hand, but the rules against racial gerrymanders are more clear, with the weight of more past legal precedent to judge on. The lower court in this case said the judiciary has the power to address some effects of a partisan gerrymandering by finding a racial gerrymander, but the plaintiffs didn’t make the right argument.
“If partisan gerrymandering dilutes the vote of minorities, remedies under Section 2 of the Voting Rights Act are available,” the panel said. “However, either for strategic reasons or a lack of evidence, plaintiffs have repeatedly informed the court that they are not pursuing a Voting Rights Act claim, but rather, are only pursuing a state constitutional claim for racial gerrymandering. This is true despite the fact that it potentially would be easier to prove a violation of the Voting Rights Act, as one only need prove effect and need not prove intent.”
Common Cause and the NCLV said the lower court misinterpreted previous case law and that the plaintiffs don’t need to show, in Common Cause’s words, “that discriminatory purpose was the sole or even a primary motive for the legislation, just that it was a motivating factor.”
“True, this Court has generally required a showing of intent under the Equal Protection Clause,” NCLV’s legal team said in its own filing. “But for laws that unequally dilute voting strength, it has sufficed that the legislature could foresee this result.”
In their pre-argument brief filed Friday, Republican lawmakers said the plaintiffs will need to prove intent, and that they presented no evidence race motivated the map drawing.
"Indeed, plaintiffs-appellants failed to even establish awareness by the General Assembly of any adverse racial impact of the enacted plans—let alone purpose," they said. "Even if awareness had been shown, though, that would still fall short of intent."
‘They’re in that zone’
Many of the attorneys on both sides of the 2019 case are involved in the current case. The judges are different.
In 2019, Superior Court Democratic judges Paul Ridgeway and Alma Hinton and Republican Judge Joseph Crosswhite heard the initial case and issued a unanimous opinion ordering new maps.
This time, again in Superior Court, it was Republican judges Graham Shirley and Nathaniel Poovey and Democratic Judge Dawn Layton saying the courts should leave this to the legislature.
There may be a logistical reason both decisions were unanimous: Judges for the state Court of Appeals and Supreme Court have dedicated clerks to help research and write opinions. Superior Court judges do not, so if they want to write a dissent, they largely have to do so themselves.
It’s not a light lift. Together, the majority opinions in these two panel decisions run more than 600 pages combined, and ultimately the lower court’s job is often to tee issues up for Supreme Court justices to decide.
“They’ve got to really, really want to strongly disagree,” said Kym Hunter, a North Carolina attorney representing the NAACP in a separate lawsuit pending before the state Supreme Court.
In 2019, Republican lawmakers declined to appeal their redistricting loss to the state Supreme Court, agreeing instead to redraw maps after the panel issued its opinion. This year, since Republicans won in the lower court, it was up to the plaintiffs to appeal. They did so, to a Supreme Court where Democrats hold a 4-3 majority.
Both sides have asked justices to recuse from the case, but so far there’s no indication any will.
Some assume the final decision will break on party lines, with Democratic judges overturning GOP maps. Crowell, the retired UNC professor, said decisions where judges must interpret the constitution often pull from public opinion, and he noted polling shows an electorate frustrated by partisan gerrymandering.
“Courts aren’t often leading the charge,” Crowell said. “They’re a little behind public opinion. And that may be a bit of the process that you’re seeing now, and why two sets of judges have come to different sets of conclusions.
“They’re in that zone. That period of change that they’re still trying to figure it out.”