North Carolina Democrats held the General Assembly after the 2000 elections, as they had for nearly all of the state’s history. During the ensuing 2001 session, top lawmakers, Democratic consultants, and progressive activists devised a set of gerrymanders that would have guaranteed Democratic control of both legislative chambers for years to come, even if most North Carolinians voted for GOP candidates.
The 2001 gerrymanders were an appalling abuse of power — but redistricting abuses already had a long pedigree in North Carolina. Indeed, a favorable map had helped Democrats win the N.C. House in 2000 despite being outpolled by Republicans statewide. And key redistricting cases such as Thornburg v. Gingles and Shaw v. Reno originated in our state.
You can see the effects of earlier gerrymandering just by looking at a map of North Carolina. Centuries ago, when legislative seats were apportioned by county rather than by population, the then-dominant politicians of Northeastern North Carolina maximized the number of counties along the coast while only grudgingly dividing the massive counties of the Piedmont and West into smaller jurisdictions.
After the 2001 gerrymanders came to light, Republicans went to court. They argued that the new legislative maps violated specific provisions of the North Carolina constitution, including the requirement to respect county boundaries. The plaintiffs won the case, titled Stephenson v. Bartlett. Republicans cheered. Democrats fumed. And our legislative districts got a bit more rational and competitive.
But it was still possible, respecting the Stephenson decision, for the party in power to draw favorable electoral maps. As the 2010 elections approached, Democrats should have adopted redistricting reform as a precaution against Republican victory and subsequent line-drawing. They didn’t, to their political detriment.
Now, as we near the 2020 election cycle, the partisan roles are reversed. Republicans have majorities in the General Assembly. Democrats have gone to court repeatedly to challenge GOP-drawn maps, often successfully. But in the just-decided case Rucho v. Common Cause, the U.S. Supreme Court voted 5-4 not to strike down North Carolina’s congressional districts as an unconstitutional exercise in partisan gerrymandering.
Many Democrats and progressives were hanging their hopes on judicial intervention. They shouldn’t have. The earlier Gingles, Shaw, and Stephenson cases alleged explicit violations of explicit statutory or constitutional provisions. But in Rucho, the plaintiffs asked the U.S. Supreme Court to devise and apply general standards based on general constitutional language. It was a bridge too far.
Two key questions remain unanswered, however. What will North Carolina courts do in a new case challenging legislative districts on state constitutional grounds? And which party will prevail in the pivotal 2020 elections?
Republicans should see what happened to the previous Democratic majority as a cautionary tale. If the Democrats of 2009-10 had advanced reform themselves, in particular by submitting for voter approval a constitutional amendment governing the redistricting process, that would have placed constraints on what Republican line-drawers could have done in 2011. Of course, Democrats didn’t think they’d lose the 2010 elections. Politicians are often overconfident.
Moreover, lawmakers and voters of all affiliations should recognize that North Carolina need not and should not be the site of a disproportionate amount of the nation’s redistricting cases. Litigation is costly, tiring, and divisive.
Now that the federal judiciary has removed itself from the partisan-gerrymander field, it’s time for other remedies. The nonprofit North Carolinians for Redistricting Reform, for which I serve as a board member, has offered the FAIR Act as a solution. It would amend the state constitution to place firm limits on gerrymandering while also enacting, by statute, a process for drawing maps based on transparency and fairness.
There’s no perfect way to draw electoral districts. But surely we can do better than the current system and the incessant political and legal strife it produces. The rules should be clear. They should restore voters as the ultimate sovereign. And as much as possible, they should be placed directly in the constitution. Let’s not do another decade of this. Let’s do something else.