The state Supreme Court will hear oral arguments Wednesday on the blockbuster redistricting case. The court has set aside extra time for both sides to make their arguments.
The 4-3 Democrat-controlled court will have to answer a few key questions:
Will the Supreme Court reverse a three-judge panel’s holding that questions of partisanship in redistricting are political questions that can’t be resolved by the courts, only by voters and the General Assembly?
Despite there being no text of the N.C. Constitution that addresses gerrymandering, will the court redefine sections of the constitution to limit political considerations in mapmaking?
If the state Supreme Court says the N.C. Constitution allows political considerations in mapmaking but forbids “extreme partisan gerrymandering,” how will justices define this principle and create an objective standard to measure “extreme partisan gerrymandering,” something the lower state court and the U.S. Supreme Court said was impossible?
Would the General Assembly have time to digest a new standard, research, create and draft new maps, hold public hearings, and pass new legislation enacting the maps in time for candidate filing to restart on Feb. 24 for a May 17 primary? Will the primary be pushed back further to late summer?
Would the General Assembly even get to redraw new maps, or would the court assign a “special master” to create court-ordered maps for use in 2022 only?
Can and will the General Assembly ask the U.S. Supreme Court to step in if the court denies the General Assembly the chance to draw new congressional maps?
Will all this spark a constitutional crisis? Reversing several prior rulings and previous precedents to “find” constitutional limitations on political map drawing for the first time ever would require the judicial branch greatly encroaching on the enumerated powers of the legislature with vast and long-lasting consequences. How will the General Assembly respond?
For N.C. Republicans, there is good, bad, and ugly in the lower court’s ruling upholding GOP-crafted legislative and congressional maps, leaving many questions unresolved about when and how North Carolina’s elections will be conducted in 2022 and beyond.
It is better to win than lose, and the GOP maps were held to be constitutional.
The court strongly rejected the idea that the General Assembly must or should turn over its exclusive constitutional role in map drawing to computer algorithms. In rejecting the plaintiff’s argument, the court wrote: “In effect, they believe the computer can take the human element out of the human. That is a process we doubt they can do, and hope will never happen.”
The court made an incredibly strong and detailed finding that nothing in the state Constitution or state law limits political considerations in map drawing. In fascinating detail, the court lays out North Carolina’s constitutional history. It includes a loathing of executive power and the creation of a legislature that was and is the supreme branch of elected government in North Carolina.
“It was the experience of the people of the State of North Carolina that was the most important source for the creation of the 1776 Constitution,” the three-judge panel wrote.
“By far, the greatest change in the structure of North Carolina’s government, other than elimination of the parliament and the Crown, was the vast reduction in the powers of the Governor and the substantial increase in the powers of the General Assembly,” the judges added. “These changes were made to make ‘the governor that figurehead in law which in fact the colonial legislature had long sought to make him.’ … Turning the Governor into a figurehead was a result of the experience of the colonists with ‘the overbearing colonial governors who presided over North Carolina.’”
We here have argued strongly that nothing in North Carolina’s Constitution bans political map drawing, and this is ultimately a political question for the voters. The lower court agreed, writing:
“Redistricting for political gain occurred well before these most recent instances, but it has not been forbidden by the people of North Carolina through a constitutional amendment or legislative act.”
The court continued:
“It is not the function of the judiciary to express the will of the people or to right perceived wrongs allowed by laws that public sentiment deems unwise or ill-advised.”
“Recognizing that all redistricting plans have partisan and political implications, even the plaintiffs recognize there is no possible way to remove all politics from map drawing. The plaintiffs have asked the court to create a constitutional distinction between permissible political considerations and unconstitutional ‘extreme partisan gerrymandering.’”
The lower court once again said this is a political question that only the voters and the General Assembly can answer.
“Redistricting is a political process that has serious political consequences,” judges wrote. “It is one of the purest political questions which the legislature alone is allowed to answer.”
The court rejected all claims that racial bias played a role in map drawing
We fear the partisan Democrat majority will come to a different conclusion to the meaning of the state Constitution and partisan map drawing. If they do, the “findings of facts” established by the lower court are problematic for the GOP.
The court accepted the “results equal intent” argument of the plaintiffs. In other words, avoiding the use of partisan data in redistricting appears meaningless to the court. If the out-of-state math nerds and their smarty-pants computer programs say certain maps are “statistical outliers,” then the court accepts that as true and found that partisan bias was the reason.
Among the court’s “facts”:
“The Court finds, based upon Dr. [Jonathan] Mattingly’s analysis, that the Congressional map is the product of intentional, pro-Republican partisan redistricting. The enacted map sticks at 4 Democrats and 10 Republicans despite large shifts in the statewide vote fraction across a wide variety of elections, in elections where no nonpartisan map would elect as few as 4 Democrats, and many would elect 7 or 8. The Congressional map is ‘an extreme outlier’ that is ‘highly non-responsive to the changing opinion of the electorate.'”
“The Court finds, based upon Dr. Mattingly’s analysis, that the State House and Senate plans are extreme outliers that ‘systematically favor the Republican Party to an extent which is rarely, if ever, seen in the non-partisan collection of maps.’”
“The Court finds that cracking Democrats from the more competitive districts and packing them into the most heavily Republican and heavily Democratic districts is the key signature of intentional partisan redistricting and it is responsible for the enacted congressional plan’s non-responsiveness when more voters favor Democratic candidates.”
The Court finds that the mapmakers focused on municipalities only when doing so advantaged Republicans.
If the Supreme Court reverses course and finds “extreme partisan gerrymandering” unconstitutional but accepts all the “findings of fact,” the Republican General Assembly could be ordered to make wholesale and dramatic changes to all three maps in question.
The court found evidence of partisan bias even when the districts created still favored the Democrats. Should the Supreme Court order a redraw based on the lower court’s “findings of fact,” we could have a situation where the General Assembly is prevented from drawing competitive districts even where they can do so sticking to traditional redistricting principles of compactness and equal population. The result may not be less gerrymandering, but court-ordered gerrymandering that forces Republicans to gerrymander to benefit Democrats.
While opinions will vary on this point, it is at a minimum conceivable to see this ruling paving the way for more gerrymandering and less competitive districts.