A ruling is expected soon on gerrymandering in NC, with a decade of political power on the line
The North Carolina Supreme Court heard oral arguments Wednesday morning in a redistricting case that will go a long way toward determining the outcome of elections across the state for the next decade.
The political district maps in question were drawn by GOP lawmakers in late 2021, to be used in every election from 2022 to 2030. The maps would give Republican candidates a big advantage in those elections, in part by packing large numbers of Democrats into a small number of districts.
Even if Democrats won the statewide vote by several points, outside analyses have shown, Republicans would still expect to keep majority control of the state legislature and win 10 of 14 U.S. House of Representatives seats representing North Carolina in Congress.
The GOP won at trial last month. A bipartisan panel of three judges ruled unanimously that while the maps are pro-Republican gerrymanders, they don’t violate the state constitution. However, whether North Carolina’s constitution bans partisan gerrymandering is still a relatively unanswered question — a similar case in 2019 ended with the opposite ruling — so it’s unclear which way the Supreme Court might be leaning.
A ruling is expected quickly, however.
If the justices rule against the legislature and overturn the maps, lawmakers might have only a few days to draw new maps in time for the 2022 primary election, which is currently scheduled for May 17. If the election keeps to that schedule, candidate filing would begin in late February, and any new maps would have to be drawn before then.
The arguments
Republican lawmakers who drew the maps contend that even if the maps are skewed in their party’s favor, there’s nothing in the state constitution that bans partisan gerrymandering, and so the court has no ability to overturn the maps and order new ones to be drawn.
“If there’s a line between what’s permissible or impermissible, and something is therefore extreme or not extreme, I don’t believe we can even get to the question you’re asking unless the court can provide that line and then decide whether the maps that were passed actually cross that line,” Phil Strach, an attorney for the Republican lawmakers, said. “We don’t think that’s been done here.”
Zach Schauf, a lawyer for the North Carolina League of Conservation Voters — one of the left-leaning groups that sued over the maps — said they aren’t asking for representation to be exactly proportionate to the statewide votes for Republicans and Democrats, but rather that maps give voters on both sides of the aisle a fair chance to make their voices heard.
If the maps stand, he said, Republicans would be essentially guaranteed to keep control of state politics even if most people vote for Democratic politicians.
“It is the systematic destruction of majority rule,” Schauf said. “And that, by the way, is also the test we think this court and the General Assembly should apply going forward: That the party that wins more votes should have at least a fighting chance to win most of the seats.”
What the judges said
The court has a 4-3 Democratic majority, and all seven justices participated in the case Wednesday. Republicans had asked two of the Democratic justices, Anita Earls and Sam Ervin IV, to recuse themselves and Democrats had asked one of the Republican justices, Phil Berger Jr., to recuse himself. But in the end all decided that they did not have conflicts of interest that would keep them from hearing the case.
During Wednesday’s hearing, the justices were highly engaged. Earls, Ervin and fellow Democratic justice Michael Morgan had numerous questions for the lawyers for the legislature. And Chief Justice Paul Newby, a Republican, kept up a near-constant line of questioning with lawyers for the challengers.
Newby pressed attorney Stanton Jones with a series of questions on how far the challengers thought the court could go in determining if a map was unconstitutional for partisan reasons. And Ervin pressed attorney Katherine McKnight on her argument that the Supreme Court should recognize the lower court’s ruling in favor of the legislature — yet not the other findings from the same ruling, that the maps are highly skewed for political gain compared to hypothetical alternatives.
“They point to (outliers of) 99.99% or more in many instances,” Ervin said. “Are those findings binding upon us too?”
McKnight said the legislature disagrees with those findings. She then referenced the expectation that the congressional map will create a 10-4 split in favor of the GOP, and the finding by the challenger’s own expert witnesses that, in some cases, a 9-5 split could be considered reasonable even if 10-4 split wouldn’t.
“We’re talking about maybe one seat,” she said.
The challengers have argued it’s not just about the top-line result, however, but also the lack of competitive districts; in both the state legislature and the congressional delegation, nearly every seat is drawn to be safe for one party or another. They said that means the results are predetermined by the shape of the lines and not by how people might actually vote — in their view an inherently unfair system.
Newby questioned attorneys for the challengers several times on that point, telling them the state constitution does guarantee “free” elections but says nothing about “fair” elections.
Other states do have such a guarantee, he said, but not North Carolina.
Jones responded to one such question by pointing to computer algorithms and other ways the challengers measured the districts — which they say show the maps are skewed almost as unevenly as possible in favor of one political party.
“It is fundamentally unfair for legislators to rig the maps, to dilute the electoral influence and voting power of North Carolina voters,” he said. “But our claims were not based ... on general claims of fairness or proportional representation. They were based on conclusive proof.”
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published February 2, 2022 at 11:31 AM with the headline "A ruling is expected soon on gerrymandering in NC, with a decade of political power on the line."
