Cartoon Calvin might like N.C. Supreme Court’s redistricting rules

Fans of Calvinball would appreciate the N.C. Supreme Court’s approach to election redistricting.

In the “Calvin and Hobbes” cartoon strip, popular roughly 30 years ago, Calvinball emerged as a game with no rules. “[T]he players make up their own rules as they go along, so that no Calvinball game is like another,” according to a fan website.

Six-year-old Calvin invented the game. He served as its ultimate referee.

“Rules cannot be used twice (except for the rule that rules cannot be used twice), and any plays made in one game may not be made again in any future games,” according to the fan site.

“There is only one permanent rule in Calvinball: Players cannot play it the same way twice.”

The story must sound familiar to North Carolina’s Republican legislative leaders. They encounter similar rules when drawing new state election maps.

The state Supreme Court has forced lawmakers to approach redistricting in the same way that Calvinball participants approached a new game. Like the fictional Calvin, the state’s highest court decides on a case-by-case basis whether participants have followed the rules.

Similarities between the fictional cartoon world and the all-too-real world of election maps came to light earlier this month. The state Supreme Court held oral arguments on Oct. 4 in Harper v. Hall. In that case, left-of-center political activists challenge legislators’ maps for state House and Senate districts.

A three-judge trial court unanimously endorsed the two maps, while rejecting a map for congressional elections. But no one knows for certain whether the Supreme Court will follow suit. The state’s highest court rejected lawmakers’ first set of election maps in February, yet declined to give lawmakers a clear set of rules for drawing new maps.

The court offered hints about the types of measurements that could tell lawmakers whether their maps are too partisan for the court’s liking. But that’s not enough to make the process work well, according to attorney Phil Strach, who represents state legislators.

“These measurements, these metrics themselves have different ways of calculating them,” Strach said. “There are literally thousands upon thousands of ways. … Respectfully, your honors, what we would submit is this is no way to conduct constitutional analysis.”

Courts should presume that state lawmakers’ maps are constitutional, unless they have violated clearly defined rules, Strach said.

“It’s not much of a presumption if you don’t know that it’s going to be a presumption going into it,” he told Supreme Court justices. “See, the General Assembly has to put pencil to paper on these things. They have to have actual metrics. They have to have standards. They have to know how to draw it in advance to meet this court’s orders.”

“If what the General Assembly has to do is pick randomly out of a mishmash of elections and metrics, and just shoot in the dark, you can’t draw a plan that way,” Strach added. “What happens then is then it becomes the court’s decision as to what map to use.”

It’s unclear why the trial court accepted state House and Senate maps while tossing out the congressional map, Strach said. All three maps applied the same guidelines the Supreme Court had issued in February.

“What this court gave the trial court is not judicially manageable,” he said. “What it did is it gave the trial court carte blanche to pick the maps that it wanted to pick based on whatever reason it had. But it wasn’t based on the metrics because the General Assembly’s metrics were all within this court’s guidelines and were all the same for all the maps.”

Rather than interpreting the text of a law, the state Supreme Court has inserted the judicial branch into the nuts and bolts of the redistricting process. Its rulings include details about past election results to be considered, and current partisan measurements to be applied, when accepting or rejecting election maps.

“When the court chooses what elections to use, how to calculate the metrics, it is making policy decisions about how much partisanship is too much,” Strach said. “It’s not saying you can’t use partisanship at all, like is the case in some states. It’s saying, ‘Well, you can use some partisanship.’”

“There’s no text. There’s nothing for the legislature or for this court to lean into to decide what does that actually mean,” he added.

Strach warned about the “danger” of deviating from clear, bright-line rules for drawing future election maps.

“What that would do is it would simply transform redistricting into a game of ‘Gotcha!’ by litigants in the courts,” he said. “Because there are so many ways to calculate these metrics, this approach would intentionally create ambiguity so that if the political result isn’t obtained by a particular litigant of whatever persuasion, then they can come in and ask the court to second-guess it.”

One doubts that the fictional Calvin would have much fun reading law books and sitting in courtrooms for hours on end. But the rules of Strach’s game of “Gotcha!” would make perfect sense to the inventor of Calvinball.

Mitch Kokai is senior political analyst for the John Locke Foundation.