In another sign that state courts are aggressively moving into the space created by the U.S. Supreme Court’s refusal to deal with partisan gerrymandering, a three-judge state court panel in that gerrymandering paradise of North Carolina has essentially tossed the congressional map Republicans developed in 2016, asking for a legislative rewrite before allowing 2020 primaries to move ahead.
It was a predictable decision in two respects. First of all, last month the same state court panel (North Carolina law directs such panels to try cases involving constitutional challenges) ruled a contemporaneous state legislative map a violation of state constitutional provisions guaranteeing “free elections” and equal protection of the law (a very common provision around the country). The congressional map was adopted by the same legislative majority using the same kind of data for the same partisan purposes.
Second of all, the 2016 map was adopted in response to a U.S. Supreme Court decision invalidating the state’s original 2011 map as representing an illegal racial gerrymander. So the Republicans that drew up the map currently in use went out of their way to advertise their partisan motives, believing they had under the available precedents a clear right to pursue a partisan gerrymander, as the New York Times explains:
Seeking to avoid any appearance of bias, party leaders said publicly they would draw the new map using political rather than racial parameters, a strategy they said at the time was completely legal. One of the map’s principal drafters boasted in 2016 that he had given Republicans a 10-to-3 edge in seats “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats …
Republicans defended the House map on the same grounds in a federal lawsuit, and won at the Supreme Court in June. But in the process, the three-judge panel noted, they left “a detailed record of both the partisan intent and the intended partisan effect of the 2016 congressional districts.”
That record was so extensive, the judges said, that it left little doubt that opponents of the map would be able to prove in a trial that it violated the State Constitution.
The state court panel basically told legislators they’d better fix the maps posthaste, since they were going to be invalidated. In similar circumstances involving the state legislative maps, Republican leaders accepted the inevitable, didn’t appeal the decision, and quickly hammered out a new and less partisan set of districts. It’s a good guess they will do the same with the congressional maps now.
The bottom line is that the big victory Republicans thought they’d won last summer when SCOTUS refused to do anything about North Carolina’s (and Maryland’s) partisan gerrymandering was Pyrrhic. State courts around the country now have two models (this one and Pennsylvania’s in 2018) for using equality protections frequently appearing in state constitutions to stop partisan gerrymandering. And precisely because SCOTUS has pushed federal courts out of the whole business of dealing with this problem, some eager would-be gerrymanderers must now deal with possible state-constitutional limitations just before the next decennial round of redistricting begins in 2021.
The big picture is this: A Republican Party that has come to rely heavily on gerrymandering and other anti-democratic institutional shortcuts to enhance its power can no longer necessarily count on justifying race-conscious map-drawing by claiming it’s really just normal partisan politics. But the extent to which they will face new limits will depend on a lot of litigation in a lot of states. It’s significant that the current North Carolina case is part of a national effort to fight GOP gerrymandering:
The plaintiffs, North Carolina residents, were sponsored by the National Redistricting Foundation, an arm of a Democratic group led by former Attorney General Eric H. Holder Jr. that is seeking to challenge Republican control of the next round of redistricting in 2021.
So more lawsuits will soon be in the pipeline. And in the meantime, Democratic prospects for hanging on to control of the U.S. House in 2020 may have just gotten a bit easier.