A court really shouldn’t shirk away from making a finding about a constitutional violation just because it may be difficult, said the lead judge on a federal panel reviewing two North Carolina partisan gerrymandering cases .
Chief District Judge William Lindsay Osteen Jr., who was appointed by former President George W. Bush, was responding Thursday to an argument by Phil Strach, who represents North Carolina’s legislature in both of the cases, which went to trial at the same time this week.
Strach opined that it was completely legal for lawmakers to use partisan information to draw the 2016 U.S. Congressional maps that resulted in a 10-3 Republican majority despite North Carolina’s status as a deeply divided “purple” state.
He criticized the plaintiffs in both lawsuits for giving the court “a smorgasbord of mathematics to prove what at the end of the day is a legal procedure,” and attempted to quote U.S. Supreme Court Justice Neil Gorsuch  in saying that they wanted “a little of this and a little of that” instead of a strict, set standard to measure partisan gerrymandering.
“The holy grail has not been found in this case,” Strach said.
Anita Earls begged to differ. The Executive Director of the Southern Coalition for Social Justice, who represents the League of Women Voters and several individual voters in one of the cases, presented the court with a three-prong test to determine whether a legislature’s partisan gerrymandering was extreme enough to cause a constitutional violation and warrant a remedy.
“There is a cure for this cancer,” Earls told the court.
That cure starts with determining whether or not there was discriminatory intent on behalf of those accused of drawing districts to advantage one political party over another. The second part of the test deals with determining whether there was a large and durable effect and the third deals with making sure there aren’t any other justifiable reasons for the gerrymander, such as political geography.
Earls argued that partisan asymmetry, or the unequal treatment of parties in terms of votes to elected seats, is the touchstone of determining whether a partisan gerrymander exists.
Osteen showed some skepticism about her test, saying that he would expect political actors to act in a way that would benefit their political party. He asked what the difference would be between that and intentionally using partisan advantage to the point it would constitute a violation.
Earls said that’s where the other prongs in the test would come in, and that a violation would be the feature of an entire redistricting plan, not just a single district.
“There needs to be both, intent and effect,” she said.
Earls and Emmet Bondurant, who represents Common Cause as the lead plaintiff in the other lawsuit that went to trial, agreed in their closing arguments that the North Carolina legislature’s intent to partisan gerrymander the 2016 congressional maps was overwhelming and not disputed.
Judge William Earl Britt, who also serves on the three-judge federal panel, seemed to agree, expressing some shock when Strach disagreed.
“Is there any doubt they intended to maximize partisan advantage as far as they could?” Britt asked Strach.
When he replied that there was reason to cast doubt, Britt snapped back, “oh, there is?”
Strach explained that lawmakers were fixing racial gerrymandering when they drew the 2016 Congressional map and that they didn’t want to disrupt the status quo 10-3 Republican majority through a court order.
“This evil partisanship that has been blown up to the court and taken out of context, that’s not what’s going on here,” he said.
Expounding on an idea Osteen had earlier asked plaintiffs, Strach told the judges that the people of North Carolina have an ability to remedy partisan gerrymandering at the ballot box by voting out the lawmakers in charge of redistricting.
To make his point, Strach said the Republican supermajority currently occupying the legislature was elected under a gerrymandered map produced by Democratic lawmakers.
“What happened there?” he asked. “People took matters into their own hands and we believe that’s the remedy here.”
Bondurant said that remedy hasn’t ever worked before despite bipartisan efforts to create an independent redistricting process.
“The Republicans are not the only ones with dirty hands here,” he said.
He said U.S. Supreme Court Chief Justice John Roberts once said those who govern should be the last ones to decide who should govern.
“And yet in redistricting, and partisan gerrymandering in particular, that is precisely the situation that is created,” he said. “The judiciary is the only solution, and it is well within not only judicial power but judicial competence.”
Bondurant contended that if a court found that partisan advantage predominated in a redistricting process, it must be found unconstitutional, violating the First Amendment and Article I, Sections 2 and 4 of the Constitution.
He said the partisan gerrymandering displayed in North Carolina’s 2016 congressional map is a textbook example of viewpoint discrimination and that it was intentionally discriminatory.
Bondurant also expounded on the alleged Elections Clause violation, noting that there was no better explanation for why partisan gerrymandering was unconstitutional than the following standard set in a prior case: “It is not a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”
“Could David Lewis have read the Elections Clause with a straight face and argued partisan gerrymandering was legal?” Bondurant asked. “Could Bob Rucho have read the Elections Clause with a straight face and argued partisan gerrymandering was legal?”
Lewis, a current Republican legislator, and Rucho, a former Republican legislator, are both defendants in the lawsuits.
Bondurant said after the trial that partisan gerrymandering is responsible for low voter turnout, polarization and a Congress that is “paralyzed and can’t get anything done.”
“This is good for the people of North Carolina,” he said of the trial. “This is good for Congress.”
Earls also spoke at a press conference after the hearing and said the case was not a difficult one. Strach declined to comment after the trial.
The three-judge panel, which also included Judge James Wynn (who is on a separate panel in a racial gerrymandering case) took the arguments under advisement and asked the parties in the case to file post-trial briefs within two weeks from Monday.