On Monday, a three-judge panel at the Middle District of North Carolina (MDNC or Court) ruled that the 2016 Congressional District Maps (2016 Maps), drawn by the North Carolina General Assembly (NCGA) to remedy previous unconstitutionally drawn maps, were themselves unconstitutional.
This case goes back to 2011, when the NCGA drew Congressional District Maps after the 2010 Census. Those maps were challenged as racial gerrymanders because of the factors legislators used in drawing those maps (2011 Maps). In Covington v. North Carolina, the Supreme Court eventually ruled that the 2011 Map districts were indeed racial gerrymanders, and two of the districts were ruled unconstitutional. The NCGA then redrew the 2011 Maps, which became the 2016 Maps, and did it entirely on the basis of political affiliation – Representative Lewis stated that he drew the maps the way he did because he believed electing Republicans was better than electing Democrats, and he drew the maps with a 10-3 Republican majority because he didn’t believe it was possible to draw a map with an 11-2 Republican majority. Several groups, including Common Cause, League of Women Voters, and the NC Democratic Party then sued the NCGA, claiming the 2016 Maps were an unconstitutional partisan gerrymander. The case was accepted by the Supreme Court, and pending a hearing, when the Court issued its decision in Gill v. Whitford – saying that to prevail on a partisan gerrymandering claim, the plaintiffs had to personally reside in the challenged districts, and there could be no statewide challenge. The Court, without hearing arguments in Common Cause v. Rucho, remanded the case to the federal district court to be ruled upon in light of its decision in Gill. Monday’s decision sees the federal district court again ruling that the 2016 Maps are an unconstitutional partisan gerrymander, and also says that the ruling in Gill only strengthens the case to be made for redrawing the maps.
Some of the issues that came up in the ruling, and how they were resolved:
Standing – one of the issues raised in this case as well as in Gill was standing – that is, the ability to have the court address your issue. In Gill, the Supreme Court ruled that not every plaintiff had standing to sue, because while statewide harm may be obvious, the people with proper standing to challenge a voting district as unconstitutional are the people in that district. Someone who lives in District 1 cannot sue to have District 8 declared unconstitutional. The MDNC determined that there was at least one plaintiff in every challenged district, and so there was standing to proceed with the case. The MDNC further noted, though, that since there was also statewide harm, organizations like Common Cause and the NC Democratic Party also had standing to challenge the statewide issues.
Justiciability – when an issue involves a purely political question, and there are no grounds for a court to get involved, the issue is said to be non-justiciable – that is, it cannot be decided by the courts. The NCGA argued that issues of redistricting by the legislature are political and therefore non-justiciable. The MDNC rejected that argument. The Court said that there were distinct Constitutional violations as a result of this political gerrymander – such as not treating all voters the same, restriction of speech, and the ability of people to elect the House of Representatives – all of which were properly handled by courts. The MDNC cited the Framers, such as Madison, Washington, and Hamilton, in emphasizing the point that election regulations could not be based on partisanship.
Equal Protection Violation – the Fourteenth Amendment to the Constitution guarantees all citizens equal treatment under the law. The partisan gerrymanders were challenged as violations of equal protection, and the MDNC agreed. Some of the reasons the Court gave for finding that the NCGA violated equal protection rights: the 2016 Maps were completed before the official process of creating them began; there was no public input provided to the mapmaker; the process for drawing the maps did not follow a normal procedural sequence; and the fact that Representative Lewis explicitly said that the maps were drawn to disadvantage Democrats. The Court also relied on lots of statistical analysis and expert conclusions to decide that there was no possible way the maps could have been drawn the way they were without being done intentionally.
And the process worked – despite receiving 53.22 percent of the statewide vote in 2016, Republican Representatives ended up with 76.9 percent of the available seats. Importantly, even if the percentage had been reversed – if Democrats received 53.22 percent of the statewide vote in 2016 – they would have only ended up with four seats instead of three. That and other types of statistical analysis convinced the Court that the NCGA deliberately drew the 2016 Maps to entrench Republicans in power. The arguments offered by the NCGA to refute the evidence or offer reasons for it were quickly dismissed as unpersuasive.
Importantly, in keeping with the ruling in Gill, the Court then performed a district-by-district analysis of whether harm was done to plaintiffs and whether the 2016 Maps, for that district, were drawn with the intent to entrench Republicans in power. There are 13 Congressional districts in North Carolina; the Court found that all but one were unconstitutional partisan gerrymanders.
First Amendment Violation – The First Amendment protects speech, including political speech, as well as the right of free association, such as with a political party. If the government intends to restrict or curtail the free speech of voters, and does so, and the reason the speech is curtailed is because of the government’s actions, the government has violated the First Amendment. If the government can demonstrate a legitimate government interest in whatever action is curtailing speech, however, then it may not be a violation. The Court found ample evidence of curtailed speech and association rights, and found that the NCGA had no legitimate redistricting objective that justified the outcome, and therefore determined that the 2016 Maps violated the First Amendment rights of voters.
Elections Clause Violation – Article I of the Constitution establishes the right of people to elect Representatives. Because that right only exists because of the grant of power in the Constitution, states have no additional authority to impose laws or regulations governing those elections beyond content-neutral regulations such as the time and manner of elections. The Supreme Court has held that states cannot violate other constitutional rights and still remain compliant with the Elections Clause. The Court again cites the Framers’ own words and debates to establish that the Framers did not intend for partisan affiliation to play a role. The Court further noted that Article I, Section 2 of the Constitution grants the right to “the People” to elect their Representatives. By creating maps based on partisan gerrymanders, the NCGA impermissibly interfered with the right of “the People.”
After all the analysis, the Court discussed the potential remedies. The Court noted they would ordinarily not be able to make changes before the upcoming election, but unusual circumstances that were present might allow them to. In particular, the fact that the NCGA cancelled primaries for partisan offices this year suggests that primary elections aren’t required for valid elections, so the NCGA can’t claim there’s not time for primaries. The Court also noted that the NCGA claimed earlier this year, to the Supreme Court, that changing legislative districts as late as the end of June would cause only minimal disruption, even though primary elections had already taken place (this was when they were trying to get the districts changed in their favor), so the Court noted that changing the district maps now, despite primaries already having taken place, should not be an issue either. Finally, the Court noted that due to the NCGA’s other unconstitutional actions, they were under an injunction preventing the state from printing out ballots while litigation was taking place over the wording of proposed amendments to the constitution, and so any orders issued by the Court at this point would have no effect on the preparation of ballots or other election machinery.
The Court concluded that whether maps were put into place for the November 2016 election; whether maps were put into place and primaries held in November, with elections to follow sometime before Congress was seated; or whether the 2016 Maps were the only option; after this November, the 2016 Maps are never to be used again. The Court lamented that the citizens of this state have now been without constitutional representation in Congress for six years and three election cycles.
The Court also announced its plans for new maps. It said that since the NCGA’s maps remediating a constitutional violation were themselves unconstitutional, it had no obligation to allow the NCGA a chance to redraw the maps. However, the Court said it would consider granting permission, and outlined what the NCGA would need to do. The Court expressed little confidence in the NCGA, noting that this was the second set of unconstitutional maps they had drawn, and noting an extensive list of election-related laws which the legislature had passed and which were struck down by various courts as unconstitutional, and suggested that it could not trust that the NCGA was willing or capable of enacting constitutionally compliant, non-discriminatory election laws.
There will be more hearings in September, and the NCGA has already indicated it will ask the Supreme Court to prevent the Court’s ruling from taking effect. However, right now the Court has only eight members, which can create a deadlock situation. It takes four members to hear a case or issue a stay, but even if the Supreme Court does issue a stay, there is a very real possibility that even if they take the case, they will deadlock, which means the ruling of the lower court will stand. (Hint hint – that’s why having eight members on the State Board of Elections is such a bad idea.)
Righting a wrong for the people of North Carolina is important. But it’s also important for the people of the United States who have been affected by the votes of unconstitutionally elected officials. Let’s hope North Carolina can be a leader in the end of partisan gerrymandering once and for all.