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North Carolina partisan gerrymandering decision has precedent around the nation; other states model possible remedies

by Carol Prince

This week a three-judge panel struck down North Carolina’s state legislative districts on the grounds of unconstitutional partisan gerrymandering. In a landmark decision after years of litigation, the judges determined that the state’s partisan gerrymandering was so egregious that it violated the state’s constitutional clauses guaranteeing equal protection and free elections. Lighting a proverbial fire under state legislative leaders, the court ordered a redraw within two weeks without the use of “election data.” Any delay could result pushing back 2020 primaries. 

The North Carolina decision is significant because it is the first to come after the Supreme Court punted on  Rucho v. Common Cause. In a 5-4 decision in June of this year, the court ruled that questions of partisangerrymandering (as opposed to racialgerrymandering on which SCOTUS issued a definitive rebuke of North Carolina’s maps in 2017) are out of the purview of federal courts. The question rests in state hands and the North Carolina judiciary gave a decisive answer. 

North Carolina is hardly unique in its years-long battle over Republican partisan gerrymandering. Nationally, with few exceptions, state legislatures draw political districts. Subsequently, bitter legal fights over the concentration of political power ensued in other deeply divided swing states (notably Pennsylvania and Florida). In January 2018 the Pennsylvania Supreme Court ruled that the state’s GOP-drawn congressional districts were unconstitutional partisan gerrymanders. In a “scathing indictment of political gerrymandering,” the ruling struck down maps deemed one of the top three starkest partisan gerrymanders in the country. Similar to North Carolina, the court found that Pennsylvania’s districts were “tortuously drawn” with Democratic voters “packed” into concentrated districts to dilute their political power (a tactic Democratic voters in North Carolina will find familiar). 

The Pennsylvania court ordered the state legislature to redraw maps to be approved by the Democratic Governor. If the two branches could not agree, the court would intervene. Republicans appealed to block the new maps, but the US Supreme Court and a federal district court declined to grant their request. In February 2018 Republicans drew new maps that were arguably just as partisan, although state leaders denied using partisan data. When the Pennsylvania Governor rejected the legislature’s proposed remedial maps, the Pennsylvania Supreme Court adopted a new congressional map that met the court-identified criteria. 

In 2015, after years of litigation, the Florida Supreme Court ruled that the state legislature must redraw at least eight congressional districts because they were unconstitutional partisan gerrymanders. The decision detailed guidelines that included public and recorded meetings, pathways for challengers to submit alternative maps, preservation of all emails, and documentation of the legislature’s justification for its “chosen configurations.” Notably, the decision came from a five-vote majority that included two Republican-appointed judges (also similar to North Carolina). Yet, like Pennsylvania, the legislature could not agree on new maps so the court had to step in to settle the matter in time for the 2016 election. Notably, the Florida decision was unique because of a 2010 constitutional amendment overwhelmingly passed by voters that banned partisan gerrymandering.

The Rucho v Common Cause foreclosed a perennial hope that federal courts would take a stand on a deeply undemocratic practice. However, the North Carolina decision in Common Cause v Lewisoffers some decisive resolution and sends a clear message to state leaders that the era of unchecked political power is ending. If the US Supreme Court refuses to issue clear judgment, then state courts and voters have models to take matters into their own hands.