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NC Supreme Court strikes down GOP redistricting plans, lawmakers have 2 weeks to draw new maps

Jess Clark

The state Supreme Court has declared congressional and state legislative district maps drawn by the North Carolina General Assembly's Republican majority to be unconstitutionally gerrymandered based on partisan bias.

The North Carolina Supreme Court has overturned congressional and legislative district maps drawn by Republicans who control the General Assembly.

In the 4-3 decision, justices found Republicans crossed the line in drawing maps that would give them solid majorities in the state Legislature as well as in North Carolina's congressional delegation — not just in the short-term but for the entire decade.

The monumental ruling found the Republican maps were designed to lock in GOP dominance even though the electorate is politically balanced statewide, and Democrats running for Congress in 2020 received more votes overall than GOP candidates.

"When on the basis of partisanship, the General Assembly enacts a districting plan that diminishes or dilutes a voter's opportunity to aggregate with likeminded voters to elect a governing majority," the order said, "that is, when a districting plan systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size — the General Assembly unconstitutionally infringes upon that voter's fundamental right to vote."

That kind of partisan manipulation, the court's majority said, violates the state Constitution's equal protection, free election, free speech and freedom of assembly protections.

 Sen. Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey), left, pointing  at the screen, works on a congressional district map with two GOP staffers. Oct. 14, 2021, at the North Carolina General Assembly.
Sen. Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey), left, pointing at the screen, works on a congressional district map with two GOP staffers. Oct. 14, 2021, at the North Carolina General Assembly.

The voting rights advocates who challenged the maps provided testimony from experts like Duke University mathematician Jonathan Mattingly, Carnegie Mellon University data scientist Wesley Pegden, and University of Michigan political methodologist Jowei Chen, who used algorithms to randomly generate thousands and thousands of sample political maps for North Carolina. The vast majority of these computer-generated maps showed the GOP-drawn maps to be statistical outliers in terms of election outcomes heavily skewed towards Republicans.

Even a state trial court that upheld the maps last month agreed that the Republican redistricting plans were intentionally designed for extreme partisan advantage. But the three-judge panel determined the state Constitution was silent on the matter of partisanship in redistricting and therefore the court could not play a role in policing it. The trial court panel left the redistricting as a political question for the legislature to tackle.

And that's exactly what attorneys for the Republican legislative defendants argued before the Supreme Court earlier this week.

Attorney Phil Strach and the legal team behind the Republican lawmakers argued that the state Constitution is explicit in putting some restrictions on the redistricting process — like requirements to keep counties whole and populations equal. But the Constitution is silent when it comes to partisanship in the process.

"The free elections clause is just general vague language and so the court would have to craft a standard out of whole cloth and the problem with doing that in a case like this is the court would have to make a number of policy decisions," Strach argued.

Strach said that would be a separation of powers violation, amounting to legislating from the bench.

But attorney Stanton Jones along with lawyers for the advocacy groups challenging the maps who appealed the lower court ruling told the high court that equal protection and free election clauses in North Carolina's Constitution guard against extreme partisanship in redistricting.

"In a partisan gerrymander, the leaders already in power manipulate the district lines to subvert the will of the people," Jones argued before the court.

Jones and his team argued the maps do so by packing and cracking Democratic voters — either consolidating them into as few Democratic majority districts as possible or spreading them out over more conservative-leaning areas.

"The intent and effect is to pre-determine the outcome of elections and entrench the majority party in power regardless of how people vote," Jones said.

And plaintiffs' attorney Allison Riggs argued the extreme partisan bias has a disparate racial impact due to the overwhelming support for Democrats among Black voters.

"This legislature could not have enacted as extreme a partisan gerrymander had Black districts in Eastern North Carolina not been attacked," she told the court earlier this week in oral arguments.

In dissent, Chief Justice Paul Newby was scathing in his criticism of the majority ruling, accusing his colleagues of violating the separation of powers by "effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution."

"A majority of this Court, however," Newby wrote, "tosses judicial restraint aside, seizing the opportunity to advance its agenda."

At oral arguments earlier this week, Newby's questions from the bench demonstrated his concern that the court was being asked to legislate new rules for redistricting.

"The court has got to have a clear standard that we give the General Assembly that frankly gives the General Assembly a safe harbor — 'we did it this way and therefore we have complied with the Constitution' — otherwise we're simply making it up," Newby said during his questioning of an attorney for the plaintiffs.

State House district map being worked on by Rep. Destin Hall (R-Caldwell), in a redistricting committee room, on Oct. 14, 2021.
Rusty Jacobs
State House district map being worked on by Rep. Destin Hall (R-Caldwell), in a redistricting committee room, on Oct. 14, 2021.

Not surprisingly, North Carolina Republicans are casting the majority ruling itself as extremely partisan.

"Democratic judges, lawyers, and activists have worked in concert to transform the Supreme Court into a policymaking body to impose their political ideas," said state Sen. Ralph Hise, a top GOP lawmaker and redistricting chairman, in a statement.

"This perverse precedent, once set, will be nearly impossible to unwind, as monied interests line up to buy their own justices to set law favorable to them," Hise continued. "I'm certain Democrats will come to regret it."

Judges in North Carolina run for office in partisan contests. Democrats hold a 4-3 edge on the Supreme Court and the redistricting ruling fell along party lines.

Even before the high court heard the case, the partisan rhetoric surrounding the matter was intense. Republicans wanted two Democratic justices to recuse themselves because of perceived conflicts of interest.

Justice Anita Earls is a former civil rights attorney who litigated against Republican-drawn maps in the past. And Justice Sam Ervin is running for re-election this year. Republicans argued he shouldn't rule on maps that could affect his or potential challengers' candidacies.

Democrats argued that Justice Phil Berger, Jr., should have disqualified himself because his father, Phil Berger, Sr., is head of the North Carolina Senate and a defendant in the redistricting litigation.

All three justices declined to step away from the case saying they could judge the matter fairly.

The court ordered the General Assembly to submit new maps for judicial review by 5 p.m., on Feb. 18, and that new redistricting plans will be approved no later than Feb. 23. Candidate filing for the May 2022 primaries is scheduled to start on Feb. 24.

This is not the first time a court in North Carolina found Republicans overstepped the bounds of permissible partisanship in redistricting. In 2019, the U.S. Supreme Court ruled that the issue of partisan gerrymandering belonged in state, not federal courts. In that ruling, the court sent a North Carolina partisan gerrymandering case back to a state trial court.

The trial court panel then discarded GOP maps for being gerrymandered with extreme partisan bias. But state lawmakers chose not to appeal that ruling so the decision applied to the 2020 election maps only and set no precedent.

Now a precedent exists. The state Supreme Court's ruling on the most recent maps puts guideposts in place for future legislative majorities in North Carolina, whether Republican or Democrat.

Copyright 2022 North Carolina Public Radio. To see more, visit North Carolina Public Radio.

Rusty Jacobs is a politics reporter for WUNC. Rusty previously worked at WUNC as a reporter and substitute host from 2001 until 2007 and now returns after a nine-year absence during which he went to law school at Carolina and then worked as an Assistant District Attorney in Wake County.