A group dedicated to electing Republicans to Congress is asking the N.C. Supreme Court not to join a political fight involving challenged election maps. The National Republican Congressional Committee wants the state’s courts to shut the door on partisan gerrymandering claims.
On Monday the high court accepted NRCC’s friend-of-the-court brief. It arrives as parties in consolidated redistricting lawsuits prepare for oral arguments Wednesday before the Supreme Court.
The suits challenge maps drawn for N.C. House and Senate seats, along with North Carolina’s 14 seats in the U.S. House of Representatives. Critics believe the maps would entrench Republican majorities, including a 10-4 or even 11-3 split in the congressional delegation.
“This case raises a fundamental question: Whether this State’s judiciary should be engaged in surveying the everchanging political system for partisan ‘fairness,’” according to the NRCC brief. “Plaintiff-Appellants urge the Court to remove politics from what is inherently a political process. Plaintiff-Appellants want what they can’t have.”
“This Court should decline the invitation to insert the judiciary into questions asking which districting plans, duly enacted by the state legislature, are too political, based on assessments of the conflicting opinions of political scientists and prognosticators attempting to predict the future behavior of American voters,” the brief continued. “Such predictions and prognostications are often incorrect and do not reflect the fluid nature of voters’ complex, nuanced, and unique voting decisions. Human beings, whether jurors or voters, are unpredictable.”
The Republican group disputes the “unsteady foundation” of map opponents’ argument that election maps can be “voter-proof.”
“Every judicial decision to the contrary in the last four decades has proven that presumption wrong,” according to the NRCC. “This is because any potential ‘partisan intent’ present in map drafting cannot overcome the will of the voters. This is due to the realities of voter attitudes, elections, political campaigns, and political environments.”
“Indeed, the lack of electoral predictability was one of the principal reasons the United States Supreme Court held, finally, that partisan gerrymandering claims are not cognizable in federal court,” the brief added.
The NRCC spells out a long history of “electoral upsets” resulting from maps that judges have deemed to be “voter-proof.” Going back to the 1980s, the group’s brief cites evidence from Indiana, Pennsylvania, Wisconsin, Michigan, Virginia, and North Carolina.
“The foregoing examples underscore a fundamental truth: voters’ respective partisanship, partisan affiliation, political positions, and electoral choices are not immutable,” according to the brief. “This mutability has many causes, but the result is the same—not every voter casts ballots based solely on partisanship in every instance.”
“Here, the Plaintiffs ask this Court to act as political scientists and statisticians,” the brief adds. “They urge this Court to demand that the courts look at cold data and divine that future elections will always turn out the way they predict and that, in this State, it is ‘impossible’ for Democrats to ever succeed. … The problem with this view of the American body politic is that it brushes off the incredibly dynamic and ever-changing nature of election results and voter behavior. It ignores human nature.”
Among the other facts NRCC uses to make its point: In 2016, Republican presidential candidate Donald Trump won the majority of votes in 21 congressional districts that had voted four years earlier for Democratic President Barack Obama. Also in 2016, voters in 12 congressional districts chose a Democrat for the U.S. House while voting for Trump. Republicans won 23 congressional districts that also voted for Democratic presidential candidate Hillary Clinton.
“In 2021, Republican Glenn Youngkin won Virginia’s gubernatorial election in an upset that represented a significant departure from how that commonwealth voted during the 2020 election only one year earlier (and in the prior gubernatorial election),” according to the brief. “The number of Republican votes during the contest grew by more than 40 percent compared to the 2017 gubernatorial contest, while Democratic votes increased by only 10 percent.”
Voters defect from parties all the time, NRCC argued. “There are infinite reasons for these defections, such as presidential popularity, preference
for creating divided or balanced government, incumbency favoritism, social contexts, scandals, whether a candidate is a prominent hero or celebrity, and even the physical attractiveness of a particular candidate.”
The current maps’ challengers are asking the court to ignore history, NRCC argued. “What Plaintiff-Appellants ask the Court to do is require that judges ignore long-term trends of constant change and assume that each subsequent election is predictable based on the previous election or by the identity of voters,” according to the brief. “On that basis, they say, courts should make determinations of the constitutionality of redistricting maps using numbers from the last several elections. They ask that the court enshrine in North Carolina law this use of ‘social science’ to predict the future, and then apply it, in perpetuity, to every map drawn in the State.
“This Court should reject such a short term and rigid view of the American — and North Carolinian — electorate, and instead approach this request with skepticism about the ability of judges to accurately predict future political trends.”