Legislative maps, judicial maps, congressional maps – North Carolina has been in the national news for all of these lately, and not in a good way. While we are waiting to hear what will happen with legislative maps newly drawn by the Special Master, Nathaniel Persily (fixing several racially gerrymandered North Carolina House and Senate districts), and while we are pushing back against allowing this General Assembly to draw new judicial maps (that could disproportionately affect rural districts and black judges), the most recent development is that North Carolina’s congressional maps have been deemed unconstitutional, skewing our representation in Washington unfairly with 10 Republicans and 3 Democrats in the House of Representatives. The court has ordered the General Assembly to re-draw these maps within two weeks, but the Republican legislature wasted no time in filing for a stay which would delay any action until the case can be appealed to the Supreme Court.

While there have been gerrymandering cases in the courts from other states as well, this case is more significant, and the first of its kind in the nation. This blog post will explain why.

What the case is about: Were the 2016 congressional maps drawn in line with constitutional

requirements?

The Ruling: No. A three-judge panel from a federal district court found the map to be unconstitutional with regard to Article I, Section 2; Article I, Section 4; the First Amendment; and the Equal Protection Clause of the Fourteenth Amendment. The overall premise of the decision was that it diluted the votes of Democrats to an unconstitutional extreme and that the General Assembly exceeded its authority in the lengths it went to create partisan gerrymanders. Importantly, the court also said that all of the available evidence, including direct quotes from the legislators, indicated that this map was deliberately drawn in a way that would dilute the voting rights of people who voted for Democrats.

Background: This is the second time this General Assembly has had to re-draw these maps.

  • The congressional districts that were drawn after the 2010 Census were challenged in court as being unconstitutional due to the impermissible use of race. That case went all the way to the Supreme Court, where it was sent back down to the original state court for reconsideration due to a newly decided case on the same topic.
  • After going through the state courts a second time, a federal district court’s three-judge panel still found the redistricting plan to be unconstitutional due to impermissible use of race, and the Supreme Court declined to review that decision. In the meantime, the General Assembly decided to redraw the maps again.
  • This time, the committee chairs – Representative David Lewis and Senator Robert Rucho – announced that race would not be used at all, but instead the districts would be gerrymandered by political party – that is, they would be drawn to maximize the amount of Republicans the state would send to the US House of Representatives.
  • The maps were redrawn by the General Assembly and once again challenged in court – and deemed unconstitutional in the January 9th, 2018 ruling due to the use of partisan gerrymandering.

Rationale for the Constitutional Violations

Article 1, Section 2: The Constitution says some very specific things about voting and elections. Article I, Section 2 of the Constitution says: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…”

  • This clause is important because it establishes that the framers of the Constitution intended for the voters to pick who represents them in the House of Representatives.
  • In this case, the court decided that, in effect, the reverse happened – the representatives picked the voters they wanted. And that isn’t permitted by the Constitution because, as explained above, the states have only the specific powers given to them by the Constitution when it comes to this issue. The court said that the Constitution doesn’t give legislators the ability to pick the voters they want.

Article I, Section 4 says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”

  • This language is important for what it DOESN’T say – almost more important than what it DOES say. The language here allows states to regulate certain components of elections, like the times, places, and some of the procedural requirements – including the ability to draw congressional districts as needed (following the once per decade census).
  • What it DOESN’T say, though, is that the state can do whatever it wants with elections. The reason this is important is because a state’s right to regulate parts of an election originates from the US Constitution. When a right given to a state is derived from the US Constitution, the state cannot exercise other related rights without express language in the Constitution allowing that.
    • Put another way, when a state is given express permission to exercise a right by the US Constitution, the state can exercise ONLY that right – not any other rights that may be related to the original one.
    • For those of you thinking, “Well, what about the Tenth Amendment and states’ rights?” It doesn’t apply here. States can’t reserve a right that they didn’t originally have – and without the US Constitution, there would be no House of Representatives.
  • The Supreme Court has interpreted this language to mean that states can enact neutral regulations with regard to the parts of an election it has authority to regulate. For example, things like requiring an ID to vote – controversial as it may be – is generally a neutral regulation, as long as it applies equally to everyone. States cannot, on the other hand, enact regulations that in some way discriminate or inhibit the rights of people to choose their Representatives.
  • In this case, the court decided that, based on prior Supreme Court rulings, the legislature had overstepped its authority by enacting discriminatory regulations. The issue isn’t that the legislature didn’t have authority to draw the map – it certainly did and still has the authority in general. However, the regulation it adopted – the map – was not neutral; it was instead discriminatory.

The First Amendment: The constitutional amendments can play an indirect role in any number of situations which may result in actions or laws being deemed unconstitutional. Almost everyone can recognize the First Amendment, or at least part of it – the right to free speech. But the freedom of speech isn’t as simple as, well, speech. The Supreme Court, over time, has recognized many different forms of speech that are protected under the First Amendment. One type of speech protected is “viewpoint” – that is, the views or beliefs held by a particular individual.

  • The government is not allowed to discriminate between viewpoints by endorsing a particular viewpoint or by putting restrictions on a particular viewpoint.
    • For example, if a state passed a law saying that people who believe the earth is flat have to pay a special tax, and people who believe the earth is round do not have to pay that same special tax, that would be unconstitutional because it is viewpoint discrimination.
    • Along the same lines, if someone who votes Republican has certain restrictions placed on him or her, and someone who votes Democrat does not have those certain restrictions placed on him or her, and the only reason for the difference is the differing political viewpoints, the restrictions would be unconstitutional.
  • The First Amendment also guarantees the right of assembly – that is, the right of people to associate with whomever they like. This right of association extends to the right to put people on the ballot that you wish to associate with (and vote for). The Supreme Court has held that the government cannot make it harder for certain political parties (like third parties with low numbers) to get onto the ballot than it can for parties like the Republicans or Democrats. And likewise, the government can’t make it harder for Republicans to get on the ballot than they can for Democrats or vice versa.
  • In this case, the court decided that the General Assembly violated the First Amendment by punishing the viewpoint of people and that it harmed the right of association for people by making it harder to get on the ballot. The maps were drawn to dilute the voting impact of people who voted for Democrats, which is a viewpoint that is considered protected by the First Amendment (it would work in the reverse situation too).
  • Additionally, by deliberately trying to dilute the impact of people who voted for Democrats, the court found evidence that it was harder to recruit Democrats willing to run for office and harder to get people to go out and vote.

The Fourteenth Amendment: Last but not least, the Fourteenth Amendment states, in part: “[No State shall] deny to any person within its jurisdiction the equal protection of the laws.” This is known as the Equal Protection Clause, and it’s pretty straightforward – the government cannot treat people differently when it comes to enforcement of the law, unless there is an EXTREMELY good reason (the way the “good reason” is measured varies based on what type of law/right we’re talking about).

  • Importantly, laws that implicate the Equal Protection Clause do not have to be discriminatory in how they are written – a law, based on how it’s written, may be completely neutral and not treat any particular individual or group of individuals differently at all. However, if the law ends up treating individuals differently when the law is enforced, the law may still violate the Equal Protection Clause.
  • In this case, the court decided that the General Assembly violated the Equal Protection Clause of the Fourteenth Amendment by seeking to entrench Republican voters with an advantage over non-Republican voters without any compelling government reason. The court found PLENTY of evidence that the General Assembly intended to maximize Republican advantage and that it intended to diminish the voting influence of anyone not voting Republican. The same evidence supported the court in finding that there were discriminatory effects like the inability to find candidates to challenge incumbents because of the voting map. And finally, the court decided that there was no compelling government interest that could justify drawing the map the way it was drawn – all the rationale offered by the General Assembly could have been accomplished while being more fair to the voting population.

Why is this case such a big deal?

There are several reasons that this case is such a big deal. In no particular order:

  • The decision by the three-judge panel was unanimous with regard to the Article I issues and the Equal Protection issue. On the First Amendment issue, it was 2-1 in favor of finding a violation of the First Amendment. The judges were appointed by presidents from both sides of the aisle, so it’s hard to claim that it was a partisan decision.
  • This is the third case of this type that has recently become high-profile, following oral arguments at the Supreme Court of a case from Wisconsin and the Supreme Court’s decision to hear an appeal on a similar issue out of Maryland. However, this case is far more clear cut than either of the other two cases. We can thank Representative Lewis and his comments outlining why he did what he did, and his decision to use partisan advantage as a criteria, for the obviousness of this case.
  • This is the second time in a row that the General Assembly has revised the North Carolina congressional voting maps and had those maps struck down as unconstitutional.
  • This court opinion seems to address any potential issues that came up during the hearing for the Wisconsin case pending at the Supreme Court – so it’s likely a stronger opinion.
  • The General Assembly never shared the public input with the consultant designing the map, despite all the show about a public hearing and soliciting public comment, and had in fact completed the map prior to the public hearing and committee meeting.
  • Some of the information in the opinion is astonishing in terms of just how extreme the map is. For example, Republicans earned 53.22 percent of the statewide vote, but won 76.92 percent of the representatives, or 10 out of a total of 13. Even if that vote was changed by six percentage points – to where Democrat vote totals statewide were nearly identical with the Republicans’ actual vote total – Democrats would only gain a single additional seat.

What happens from here?

The court said the current maps could not be used in the 2018 election, and gave the General Assembly until January 29th, 2018 to draw new maps or said that it would appoint a special master. The General Assembly has filed a request for a stay with the three-judge panel, which would stop the enforcement of the court’s decision until it is ruled on by the Supreme Court. It’s hard to tell whether a stay will be granted or not, but an appeal is a guarantee – and in redistricting cases, the appeal goes straight to the Supreme Court. So we will know fairly soon if the Supreme Court will agree to hear this case or not. The General Assembly may or may not begin to draw new maps (again) to comply with the court decision. In the meantime, Senate Bill 703 has been filed by Senator Jeff Jackson, which would amend the North Carolina constitution to require all redistricting be handled by an independent commission, which has received bipartisan support from the community at large.

What’s the bottom line?

The bottom line is that yet again, the Republican majority in the General Assembly has drawn unconstitutional voting maps – this time, the map discriminates against anyone who didn’t vote Republican. The General Assembly has repeatedly had its redistricting actions challenged in court, and has lost, and there’s the potential that they will lose this case too. The Republicans in the General Assembly continue to waste taxpayer dollars, create confusion, and reveal in stark fashion the lengths they’ll go to entrench themselves in power.