All four of the Democrats that comprise a majority on the court asked multiple questions and are clearly planning on striking the maps down. In our opinion, it is just a question of how the court strikes the legislative and congressional maps, what lasting precedent it sets, and what guidance it gives the General Assembly.

We have argued there are no state constitutional limitations on partisan considerations in mapmaking. This is the position of the legislative defendants and the lower court. We have contended it would take an extreme state Supreme Court to throw out these maps based on the existing text in the constitution. This is a position we continue to hold.

However, the Democrats on the Supreme Court made crystal clear in their questions they will find the state Constitution prevents some types of partisan behavior in district drawing.

Other quick takes:

Far-left Supreme Court Justice Anita Earls was clearly advocating the position that Democrats should be a protected class. She challenged legislative defendants on the idea that the Constitution protects individual rights only.

Earls and Justice Mike Morgan both indicated in their comments they believe that, unlike what the lower court found, racial discrimination exists in the maps in question because partisanship is equal to race given that most black voters in North Carolina vote for Democrats.

Republican Chief Justice Paul Newby tried to get the Democrat-aligned plaintiffs to articulate how their position is different than saying the Constitution requires proportional representation in seats won based on a statewide vote. Plaintiffs tap-danced as hard as they could, but could not come up with a clear answer.

Chief Justice Newby was forceful in pointing out that the North Carolina Constitution, unlike some other state constitutions, does not have a “fairness” standard in the text.

Legislative defendants pointed out the problems with reliance on computer modeling. They pointed out that districts in the Greensboro area drawn by Democrats and accepted by Republicans were still shown to be partisan gerrymanders because they can’t account for the human element.  The further pointed out the plaintiffs own experts testified the difference between the “optima fair maps”  and what the General Assembly enacted was minimal, a difference of nine GOP congressional seats instead of ten, one state Senate seat, and a few state House seats.

Many of the questions explored how a standard could be created by the court to measure the difference between permissible partisan considerations, and extreme partisan gerrymandering that would be unconstitutional. As we have noted, the U.S. Supreme Court and the lower N.C. court said this was an impossible line to be drawn.

The Democrat-aligned plaintiffs suggested following a standard articulated in a brief submitted by Gov. Roy Cooper and Attorney General Josh Stein.

The brief reads:

Should the need arise, this Court could establish a similar test to distinguish between plans that unduly favor one party without justification, triggering elevated scrutiny, and those that do not.

Advances in computer modeling make it possible to easily compare enacted districting plans with other alternative plans, to assess how much the enacted plans deviate from median neutral plans that were drawn based on nonpartisan redistricting criteria.

Thanks to those advances, this Court could adopt a rule that is similar to the one the U.S. Supreme Court has developed to govern allowable population deviations. Under that rule, an enacted plan would be subject to strict scrutiny unless the plan stays within 5% of the median outcome, measured by seat count, at a statewide level across a range of electoral circumstances. And even within this framework, the Court could still scrutinize plans when the record otherwise suggests that legislators have drawn districts for partisan gain.

Researchers at the John Locke Foundation ran the numbers on the Cooper/Stein formula and found that similar to the defendant’s arguments, the required changes in the maps would be minimal.

By our math here is what we see:

  • Congressional median outcome: 9-5 Republican advantage per Jowei Chen (page 33) and Daniel Magleby (page 22) with no permitted variation
  • Median NC House: 68-52 Republican advantage +/- 3 seats (Daniel Magleby page 12)
  • Median NC Senate: 28-22 Republican advantage +/- 1 seat (Daniel Magleby page 17)

So, the maximum Republican seats allowed per Cooper & Stein would be nine in Congress, 71 in the NC House, and 29 in the NC Senate. The difference being one congressional seat, one state senate seat, and about 2-3 State House seats.

With differences that small, how are these maps “extreme partisan gerrymanders?”