They struck down the 2016 map as an unconstitutional partisan gerrymander and ordered the state not to hold an election until a remedy is enacted. The legislature has until 5 p.m. Jan. 24 to redraw the congressional map, and with a candidate filing deadline looming, the court said it also intends to appoint a special master to help draw an alternative plan.
It’s the first time a federal court has blocked the use of a congressional map because of an unconstitutional partisan gerrymander.
“This is a true victory for North Carolina voters,” said Bob Phillips, executive director of Common Cause NC, a plaintiff in one of the cases. “At long last, politicians will no longer be allowed to use partisan gerrymandering in order to shield themselves from accountability to the public.”
The 191-page majority opinion, written by Judge James Wynn, a President Barack Obama appointee, and joined by Judge Earl Britt, appointed by Jimmy Carter, sharply criticizes Republican lawmakers for their overt partisan intent. Judge William Osteen, a George W. Bush appointee, wrote a separate 14-page opinion concurring in part and dissenting in part.
“Legislative Defendants also do not argue – and have never argued – that the 2016 Plan’s intentional disfavoring of supporters of non-Republican candidates advances any democratic, constitutional, or public interest,” Wynn wrote. “Nor could they.”
Osteen agreed with his colleagues that the 2016 map violates the Equal Protection Clause and Article I, Section 2 and 4 of the Constitution. He wrote that he did not believe the plaintiffs’ stated injuries amounted to a violation of their First Amendment rights.
Expressed partisan advantage
Even more than the Republican Party as a whole, Wynn zeroed in on Rep. David Lewis (R-Harnett) and former Senator, Bob Rucho, who instructed GOP mapmaker Tom Hofeller to draw a congressional map “to create as many districts as possible in which GOP candidates would be able to successfully compete for office.”
It should be noted, those instructions were made and the map was drawn before a redistricting process ever publicly took place or involved participation from Democratic lawmakers.
Lewis’ comments during that redistricting process created a foundation on which the partisan gerrymandering claims were both launched and subsequently upheld in Wynn’s opinion.
Lewis, he wrote, reiterated multiple times throughout the process that the goal of adopted redistricting criteria was to elect 10 Republicans and three Democrats, an eventuality that was achieved. Wynn also pointed out that Lewis said at the time the committee should draw maps with a Republican advantage “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
“Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he “think[s] electing Republicans is better than electing Democrats,” Wynn wrote. “But that is not a choice the Constitution allows legislative mapdrawers to make.”
Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, represented the League of Women Voters, another plaintiff, in one of the lawsuits. (There were two partisan gerrymandering lawsuits combined into one trial that resulted in Tuesday’s opinions.)
“We’re enormously gratified on behalf of our clients and all voters in North Carolina that no one will have to endure another congressional election under an unconstitutional map,” Riggs said. “The court was clear in demanding a real remedy before the 2018 elections, and we expect the General Assembly to respect that order.”
Ruth Greenwood, senior legal counsel on voting rights and redistricting at Campaign Legal Center, which also represented plaintiffs in the case, echoed Riggs’ sentiment.
“The court handed voters a major victory today by reinforcing the core principle that voters should choose their representatives, not the other way around,” she stated. “North Carolina should take this opportunity to draw a fair map that does not discriminate against voters. And marginalized voters in other states should be encouraged that the courts have adopted a standard for measuring partisan symmetry that can be used to set limits on the practice of gerrymandering nationwide.”
The court’s opinion does come before a U.S. Supreme Court ruling on partisan gerrymandering that could impact redistricting processes across the nation. Gill v. Whitford, a partisan gerrymandering case out of Wisconsin, was heard by the highest court in October and poses some questions of law similar to the North Carolina cases.
Wynn wrote that the effect of partisan gerrymandering in North Carolina was the diluted votes of plaintiffs who supported non-Republican candidates in the 10 districts that lawmakers drew to elect Republicans.
“On its most fundamental level, partisan gerrymandering violates ‘the core principle of republican government . . . that the voters should choose their representatives, not the other way around,’” the majority opinion states. “Put differently, partisan gerrymandering represents ‘an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.’”
When a partisan gerrymander entrenches a political party in power, Wynn wrote, it undermines the ability of voters to effect change when they see legislative action as infringing on their rights.
It was James Madison, he added, who warned a legislature insulated by virtue of an insidious gerrymander could enact additional legislation restricting voting rights and further cementing “its unjustified control of the organs of both state and federal government.”
The GOP-controlled legislature has indeed attempted in its time to pass measures with either the intended or unintended consequence of suppressing voters, including a voter identification law that was struck down by the courts.
Lawmakers are also already in hot water with the courts over racial gerrymandering – an issue on which Wynn is also involved as a judge and on which he wrote in Tuesday’s opinion.
He addressed lawmakers’ arguments that the partisan gerrymandering claims should be struck down because they involve the same harms as racial gerrymandering and that race-based claims allege a more serious violation of the Constitution.
Wynn wrote that the court agreed that some injuries flowing from partisan gerrymandering are analogous to the ones attributed to racial gerrymandering but noted important differences.
“For instance, partisan gerrymandering plaintiffs do not suffer the same stigmatic and dignitary harms as those suffered by racial gerrymandering plaintiffs,” the opinion states. “And partisan gerrymandering plaintiffs endure the same dilutionary harms that permit voters residing in overpopulated districts to lodge statewide challenges in one-person, one-vote cases.”
One-person, one-vote is not the only Supreme Court guidance Wynn took in writing the majority opinion. He criticized lawmakers for arguing that the highest court sanctioned some degree of partisan gerrymandering.
Clarifying, Wynn said the Supreme Court has recognized certain purposes for which a state redistricting body can take into account political data or partisan considerations when drawing district lines.
He cited some examples: using the traditional redistricting criterion of avoiding pairing incumbents; using a rough approximation of statewide political party strengths; and considering political subdivisions or maintaining “communities of interest.”
“But the Supreme Court’s acceptance of state legislatures’ reliance on partisan considerations and political data for certain purposes does not establish that a state legislature may pursue any partisan objective, as Legislative Defendants contend,” Wynn wrote. “In particular, the Supreme Court has never recognized that a legislature may draw district lines for the purpose of diminishing or minimizing the voting strength of supporters of a particular party or citizens who previously voted for representatives of a particular party – the legislative action challenged here.”
‘Smorgasbord’ of social science
Wynn wrote in the majority opinion that empirical evidence from the plaintiffs’ experts in the case was compelling in showing intent to “subordinate the interests of non-Republican voters.”
Jonathan Christopher Mattingly, a professor of mathematics at Duke University, and Jowei Chen, an associate professor of political science at the University of Michigan, both testified at trial that the 2016 plan was an extreme partisan outlier.
Lawmakers argued that the empirical evidence did not offer a judicially manageable standard for adjudicating partisan gerrymandering claims, but instead are “a smorgasbord of alleged ‘social science’ theories that lack any constitutional basis.”
It’s an argument also before the U.S. Supreme Court, and one in which Chief Justice John Roberts might agree. He referred to empirical evidence in the Wisconsin gerrymandering case as “sociological gobbledygook.”
However, to uphold that argument, Wynn wrote, would be to admit the judiciary lacks the competence or willingness to keep pace with technological advances – an obligation necessary to “effectively fulfill its constitutional role to police ever-more sophisticated modes of discrimination.”
“Advances in statistical and empirical theory and application, therefore, have the potential to allow parties, experts, and amici to provide courts with more rigorous and probative evidence, thereby decreasing the risk that courts will render a decision that later proves to have rested on an errant empirical analysis,” he wrote. “Consequently, it makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods – as Legislative Defendants implicitly suggest – to prove or disprove claims premised on established legal standards.”
The evidence presented by experts appears to have helped the court decide that the partisan gerrymandering in the 2016 plan violated the Equal Protection Clause. It also helped show the legislature’s intent to maximize partisan advantage and thereby discriminate against voters who supported or were likely to support non-Republican candidates, the opinion states.
“When viewed in totality, we find Plaintiffs’ evidence more than sufficient to prove that the 2016 Plan has discriminated, and will continue to discriminate, against voters who support non-Republican candidates,” it states.
Wynn also credited the “persuasive force” of efficiency gap and partisan asymmetry data presented by Simon Jackman, a former Stanford University political science and statistics professor and current CEO of the U.S. Studies Centre at the University of Sydney.
He wrote at length about all the data presented in the case, prompting Jackman to tweet an enthusiastic response Tuesday about his role in the trial.
“Proud of my part in @CampaignLegal win vs partisan gerrymandering,” he wrote. “Judgement affirms value of data & analysis!”
‘A great victory’
With the exception of one, prominent Republicans in the state weren’t so quick to express their reactions to the ruling.
Senate President Pro Tem Phil Berger, House Speaker Tim Moore and Lewis did not respond to a request for comment, nor did they post anything on social media.
Dallas Woodhouse, Executive Director of the North Carolina Republican Party, went on Twitter after the opinion was published and harshly criticized Wynn.
“It is incredibly disappointing activist Judge Jim Wynn is waging a personal, partisan war on North Carolina Republicans,” he wrote, later adding, “It is now very clear that Judge Wynn has decided that @NCGOP should not be allowed to draw election districts under any circumstances under any set of rules. This is a hostile takeover of the #NCGA and legislative bodies across the U.S.”
He reposted all of his tweets to Facebook as “NCGOP full comments on redistricting.”
“Meanwhile the US Supreme Court should take note of the outrageous political actions of some courts and see what a Pandora’s box they could be opening with partisan gerrymandering claims,” he wrote.
WRAL reported a spokesperson for Sen. Ralph Hise (R-Mitchell) said the case would be appealed.
Democrats and voting rights advocates celebrated the ruling.
“A great victory for #FairMaps!,” tweeted Sen. Jay Chaudhuri (D-Wake).
North Carolina Congressman David Price said in a statement that no state had suffered more from extreme partisan gerrymandering.
“The North Carolina General Assembly must now comply with the court’s order and develop a fair map with compact districts,” he said.
His colleague, Rep. G.K. Butterfield applauded the three-judge panel for its ruling.
“The decision reaffirms my long held belief that Republicans in the North Carolina General Assembly drew the congressional map with the express purpose of maximizing the number of Republican congressional districts,” he said. “Republicans comprise 30 percent of registered voters in North Carolina, yet they crafted a congressional map that would ensure Republican success in ten of thirteen districts, or 76 percent. The Republicans made this case relatively simple when they admitted in court that the congressional map was drawn for partisan political advantage.”
Eric Holder, a former U.S. Attorney General and current chair of the National Democratic Redistricting Committee, noted that the court order signals the time for fair maps in North Carolina.
“The court could not be more clear and the Republican legislature could not be more wrong,” he wrote on Twitter. “The solution is simple: be fair in drawing districts lines.”