The role of the judiciary in partisan gerrymandering is a topic du jour. This past summer, in a dispute over North Carolina’s congressional maps, the United States Supreme Court closed the federal courtroom doors to all partisan gerrymandering claims, declaring the issue non-justiciable in Rucho v. Common Cause. But the Court wrote that “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” Recently, in Common Cause v. Lewis, a three-judge panel of the Wake County Superior Court unanimously ruled that 28 legislative districts in North Carolina were unconstitutional partisan gerrymanders under the North Carolina Constitution’s Free Elections, Equal Protection, and Freedom of Speech and Assembly Clauses. As the first post-Rucho decision striking down partisan gerrymandering, this case provides an important legal framework for other state courts considering cases of extreme partisan gerrymandering.
In 2011, after the 2010 decennial Census, the North Carolina legislature passed new legislative maps. In Covington v. North Carolina, the United States District Court for the Middle District of North Carolina declared that 28 of the districts in those 2011 maps were unconstitutional racial gerrymanders. That finding was summarily affirmed by the United States Supreme Court in June 2017. After court battles over the remedial process, the legislature eventually passed new redistricting criteria and had consultant Dr. Thomas Hofeller draw new legislative maps. Plaintiffs, including both individual voters and Common Cause of North Carolina, argued in Common Cause v. Lewis that those 2017 maps violated the North Carolina Constitution.
In a 357-page decision, the panel found in favor of the plaintiffs, ruling that the 2017 maps were unconstitutional partisan gerrymanders. The court held that partisan gerrymandering violated the North Carolina Constitution for three reasons. First, the court wrote that partisan gerrymandering “strikes at the heart” of the Free Elections Clause, a provision of the North Carolina Constitution stating that “[a]ll elections shall be free.” Second, the court held that partisan gerrymandering violated the North Carolina Equal Protection Clause, which North Carolina courts have interpreted to include a fundamental “right to vote on equal terms.” The court also held that maps designed with the intent and effect of classifying voters by their partisan voting history is an equal protection violation, unless that classification serves a compelling governmental interest. Finally, the court declared that under the North Carolina Constitution, partisan gerrymandering unconstitutionally burdens the free speech and assembly rights of those who vote for the disfavored party by diluting their votes and their ability to effectively organize.
The court also appeared to establish a standard for adjudicating partisan gerrymandering claims, writing that the plaintiffs had “plainly and clearly” shown that: 1) the North Carolina legislative defendants intentionally manipulated the statewide map for political gain, and 2) that the manipulation was effective (e.g., Republicans maintained a 54% majority in the State House and a 58% majority in the State Senate despite obtaining less than 50% of the two-party statewide vote in 2018). Finally, the court noted that the defendants failed to provide “a neutral justification or a compelling governmental rationale for their actions.” In addition to finding that the statewide map was a partisan gerrymander designed to entrench Republican control, the court examined 14 House and 7 Senate “county groupings” to establish that 28 specific districts were partisan gerrymanders.
Lastly, the court imposed a thorough remedies process, permanently enjoining the 2017 legislative map, prohibiting the legislature from using the 2017 map as a starting point for drawing the remedial map, and requiring that the legislature draw the remedial map in full public view. The legislative defendants indicated that they would not appeal the decision.
The court’s decision is significant both because of its legal framework for handling partisan gerrymandering and because of the remedies it provides. Other states would do well to follow in the court’s footsteps. The court’s legal framework for adjudicating partisan gerrymandering is significant in at least three ways. First, 30 states have free elections clauses similar to that of North Carolina. Second, the court noted that “[i]n the context of partisan gerrymandering, it is especially important that North Carolina courts give independent force to North Carolina’s constitutional protections.” This decision marks another win for those advocating against lockstep jurisprudence, in which some state judiciaries interpret their state Equal Protection and Free Speech/Assembly clauses in lockstep with federal constitutional law. Third, the court did what the Supreme Court had failed to do by finding a standard for adjudicating partisan gerrymandering claims. In fact, the court used the relatively straightforward standard suggested by plaintiffs in oral argument in Rucho, which requires plaintiffs to prove discriminatory partisan intent and effect before shifting the burden to defendants to provide an alternative explanation for their actions.
Aside from its value as persuasive legal precedent, the ruling is also important for the remedies it provides. By requiring that the legislature hold its map-drawing sessions in full public view using only court-approved outside consultants, the court set a new high-water mark for transparency in redistricting that other state courts would do well to adopt. And by eliminating the legislature’s ability to use the unconstitutional maps as a starting point for drawing new maps, the court reduced the likelihood that the original partisan discrimination would carry over into the remedial maps.
While Common Cause v. Lewis was decided under the North Carolina Constitution, the decision should be persuasive to other state courts considering similar claims. By establishing the state constitutional grounds on which partisan gerrymandering is unconstitutional, setting out a clear standard for adjudicating these issues, and implementing a thorough remedies process, the Wake County Superior Court found a way to do what the United States Supreme Court would not – put up guardrails against extreme partisan gerrymandering and move us closer to having truly free and fair elections.