N.C. Attorney General Josh Stein tweeted the news last night.
Arguments in the redistricting case before the North Carolina Supreme Court just days earlier gave observers the impression a majority of justices were not buying what Republicans’ attorneys were selling. With new filing opening fast approaching, the court made quick work of 4-3 ruling split along party lines (WRAL):
The maps outlining congressional and legislative districts in the state strongly favored the GOP, with the party expected to win 10 or 11 of the 14 U.S. House seats up for grabs. The maps, drawn by the legislature’s GOP majority, also gave Republicans a better chance of securing veto-proof majorities in the state House and Senate.
“When a districting plan systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size, the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote,” the four registered Democrats on the state Supreme Court wrote in their order.
The court ruled that Republicans must submit new voting maps to a lower court by 5 p.m. Feb. 18. The maps must then be approved by a three-judge panel by noon on Feb. 23. If the new legislative and congressional boundaries are not submitted in time, the judges would be tasked with selecting a plan.
We’ve been here before multiple times since 2011. Courts reject the GOP gerrymander. Republicans make a minor tweak and resubmit the Plan B maps they likely had in a drawer. Courts push back again. In past cases, there was more time for stalling. But with primaries ahead, not this time.
Chief Justice Paul Newby, a Republican, dissented, saying voters and lawmakers should be the ones to reign in partisan redistricting. His GOP colleagues, Justice Phil Berger Jr.—the son of Senate leader Phil Berger, who was also named in the lawsuit—and Justice Tamara Barringer, also opposed the court’s decision.
“Unless and until the people alter the law to either limit or prohibit the practice of partisan gerrymandering, this Court is without any satisfactory or manageable legal standard and thus must refuse to resolve such a claim,” Newby wrote.
I must admit, Newby had a point. To a point. The majority opinion argued that by its reasoning the state constitution’s protections require fair districts under “the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.” But it was unclear about what constitutes fair.
The majority wrote, “When, on the basis of partisanship, the General Assembly enacts a districting plan that diminishes or dilutes a voter’s opportunity to aggregate with likeminded voters to elect a governing majority-that is, when a districting plan systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size-the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”
But to Newby’s point, in a state with (currently) 2.5 million registered Democrats, 2.2. million Republicans, and 2.5 million Unaffiliateds (Independents), what constitutes “likeminded voters”? There is not “one group” here and “another group” there. There are three. How does one draw maps to fairly represent the interests of a third of state voters who, by their lack of party affiliation, have no discernable political “mind.” The major patterns of aggregation for Unaffiliateds are racial and ethnic, and those are crude instruments. But the Republicans used them and local voting patterns to advantage their third.
Naturally, the Republican minority argues that the court is overreaching its authority by meddling in the legislature’s business. Only the voters in the unfairly drawn districts can remedy unfairly drawn districts by voting in unfair elections. The Democratic majority argues (indirectly) that separation of powers arguments do not trump the state constitution’s protections of individual rights.
“The U.S. Supreme Court said it’s up to state courts to rein in partisan gerrymandering, and that’s exactly what the North Carolina Supreme Court has done,” said Elisabeth Theodore of the law firm Arnold & Porter. “The court’s direction is clear: The General Assembly must stop cheating and draw fair new maps so that North Carolinians can have a fair say in who governs them.”
But fair to whom and how? To be continued.
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