Partisan gerrymandering returns to state court Monday, July 15, for a battle that could stretch over weeks.
On the heels of the U.S. Supreme Court’s recent decision that federal judges should step out of squabbles over partisan redistricting, there is Common Cause v. Lewis.
This lawsuit challenging partisan gerrymanders of legislative districts drawn in 2017 is expected to draw national attention as similar lawsuits move forward across the country. Common Cause NC, the N.C. Democratic Party, and a handful of individuals last year filed a redistricting lawsuit against the N.C. General Assembly. Republicans violated the state constitution by carving out voting districts to their advantage, disenfranchising voters, plaintiffs said. GOP lawmakers denied any legal wrongdoing.
Already, judges have presided over hours of pre-trial hearings.
Gerrymandering cases are pending in courts nationwide, and only states can decide whether the practice is a matter of law or a political concern. The Supreme Court said this June 27 in a consolidated case that included North Carolina’s Rucho v. Common Cause.
Claims against partisan gerrymandering “present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote in the high court’s 5-4 majority opinion.
Federal judges have no license to slice and dice electoral power among Republicans and Democrats, Roberts said.
But Justice Elena Kagan, who was appointed to the court by President Obama, strongly disagreed. The Supreme Court is responsible to defend the foundations of a free society, she wrote in dissent.
“None is more important than free and fair elections.”
Common Cause v. Lewis is a courtroom drama that will play out before a panel of three Superior Court judges: Paul Ridgeway, Joseph Crosswhite, and Alma Hinton.
Judges will spend two weeks listening to arguments, the court projects.
State courts have the right, and the responsibility, to consider cases of partisan gerrymandering, though the legislature classically controls all aspects of redistricting, said former N.C. Supreme Court Justice Bob Orr.
If the three-judge panel determines GOP maps violate the constitution, then the court must require the legislature to fix the problem, Orr told Carolina Journal. In some circumstances, a court may insist on picking a “special master,” an independent, third-party mapmaker, but those cases are very limited — typically when courts determine subsequent sets of redrawn maps fail to satisfy the constitution.
Common Cause hopes to strengthen its case via the “Hofeller Files,” 35 documents swept from a digital trough of maps drawn by the late Thomas Hofeller, a famed GOP redistricting strategist. Hofeller, who died last year, left behind 75,000 files on USB drives and hard drives. His estranged daughter, Stephanie Hofeller, found the files and turned them over to Common Cause.
Controversy ensued. The files show lawmakers lied to a federal court in 2017 about the readiness of redrawn maps for a special election, Common Cause said. Legislators countered the documents were drawn on a private computer and were not part of the maps commissioned by the General Assembly.
The files, while causing media buzz, may not address the core question, Orr said. Ultimately, the court must decide if there is anything unconstitutional about a political party using its power to sway election results.
The state’s legislative and congressional maps must be redrawn once a decade, after a new census is complete. The state and federal constitutions require districts — for starters — to include roughly equal numbers of residents, be “contiguous” (you can travel from any point in a district to any other without crossing a boundary), and be designed not to dilute minority voting power.
In Rucho, the Roberts Court ruled the federal judiciary’s power to get involved with mapmaking essentially ended there.
Lewis is different, plaintiffs say. They argue the N.C. Constitution prohibits partisan gerrymanders and provides greater equal protection guarantees than the U.S. Constitution. They say the court should toss out the 2017 plans written to satisfy the federal Covington v. North Carolina case, and order new maps for 2020.
“The maps are impervious to the will of the voters,” the lawsuit says. It noted Democratic candidates won a majority of the statewide votes cast in the 2018 elections, but Republicans still won a substantial majority of seats in each chamber.
The 2017 redistricting plan harms the plaintiffs’ freedom of speech and freedom of assembly based on their identity, viewpoints, and content of their speech, making their votes less effective, the lawsuit claims. Money spent by the Democratic Party on candidates for messaging is less effective because of the gerrymanders.
Plaintiffs also say the Hofeller documents show the GOP-led legislature used malevolent intent when they designed the maps.
But in 2018, Lewis dismissed contentions of excessive gerrymandering. Any reasonable person could look at the legislative maps and see 87 of 100 counties were kept whole, with only 12 precincts split, he said.
The state constitution requires counties not to be split whenever possible. Districts must be contiguous and have equal populations, making multi-county districts impossible to rig for partisan advantage, Republicans say.
Lewis and other Republicans also have relied on the argument the Rucho majority found compelling: As long as the districts are otherwise legal, courts have no business judging how much partisanship is too much when states draw legislative and congressional districts.
Senate leader Phil Berger, R-Rockingham, restated these arguments in recent news releases. Berger said July 10, “the real problem Democrats have with winning legislative seats in North Carolina is geography. The whole county provision and county groupings largely pre-determine the maps. A N.Y. Times analysis confirmed this: ‘Republicans, in short, are more efficiently distributed in a system that rewards spreading voters across space.’”
It may be months before the three-judge panel issues a ruling. And this court won’t be the final stop for the lawsuit. It’s expected eventually to arrive at the state Supreme Court, where partisan appeals may resonate.
That court has a 6-1 Democratic majority. One of the Democratic justices elected in 2018, Anita Earls, represented a plaintiffs group suing the Republican General Assembly in the Covington lawsuit.
Meanwhile, it’s not entirely clear that the issue will be resolved by state courts. A federal judge ruled Jan. 2 against legislative leaders’ attempt to have the case moved to the federal courts. Legislators appealed that decision. Their appeal hasn’t been resolved.