The trial in the case of Common Cause v. Lewis – the state constitutional partisan gerrymandering challenge – will begin at 10 a.m. Monday and could take up to two weeks to conclude. It’s the last chance before the 2020 redistricting cycle that partisan considerations in the mapmaking process can be reined in.
“Now that the U.S. Supreme Court has slammed the door on federal partisan gerrymandering cases, the battleground moves to the states,” said David Daley, the author of Ratf**ked: Why Your Vote Doesn’t Count . “North Carolina will be the very first test of whether a state-by-state strategy focused on state supreme courts might help curb this scourge on our democracy.”
The high court ruled at the end of June that partisan gerrymandering challenges were out of the reach of federal courts. It was a blow to voting rights advocates, who, for decades have been fighting to take politics out of redistricting.
There was a sliver of hope, though, for those who mourned the decision: states can still decide how to handle partisan gerrymandering – either through legislatures that pass redistricting reform, state courts that outlaw the practice or, in certain areas, voters who pass reform referendums.
Common Cause v. Lewis had already been working its way through the state courts, so the outcome of the trial could have a significant impact on redistricting despite the U.S. Supreme Court ruling.
Daley has been researching and writing about partisan gerrymandering for years. His book, Ratf**ked, examines the rise of the Republican Party through strategic gerrymandering efforts and explores how it’s affected democracy in America.
He has been watching redistricting reform efforts in North Carolina for a long time and he’s planning on keeping a close eye on the trial next week. He said it certainly would have been better if the U.S. Supreme Court had issued a ruling that drew clear, bright lines to prevent lawmakers from handing their own party an entrenched decade of power, but he’s optimistic for the state.
“There’s a decade’s worth of evidence having to do with both specific partisan intent and election results showing just how durable and effective these lines were in holding back Democratic waves, creating a host of non-competitive elections and redefining politics in North Carolina,” Daley said.
There is a lot of evidence that will be introduced at trial, and some of it is expected to get deep into the weeds of redistricting. Pretrial motions alone involved hours of tedious argument Wednesday about what testimony judges would allow and how certain data could be presented without compromising certain legal standards.
It’s also still unknown whether the three-judge panel presiding over Common Cause will allow the plaintiffs to use evidence found in what have come to be dubbed “the Hofeller files.”
Thomas Hofeller was a renowned GOP mapmaker who worked for North Carolina legislative leaders. After his death last year, his daughter turned over his digital data to the plaintiffs in the case, and a courtroom battle has ensued ever since.
Judge Paul Ridgeway said Wednesday he expects there to be a decision about the documents “in the very near future.”
Daley didn’t downplay the importance of the Hofeller files – “they show in black and white just how intentful and devious these Republican strategists were” – but he did speculate that Common Cause could win without them if necessary. To make his point, he cited several federal court rulings against partisan gerrymandering that never had access to those documents, including in North Carolina.
He expressed a real optimism for the case and said the evidence here is “overwhelming and clear.”
“We know that neutral observers look at these maps and the process that produced them and cry out in horror for the damage that they do to representative democracy,” Daley said. “In this day and age, you also have to look at the partisan makeup of courts, and Democrats have been able to make fair maps an issue in Supreme Court races in North Carolina, and they’ve won those races overwhelmingly.”
The plaintiffs in Common Cause are expected to put on evidence that GOP lawmakers intentionally maximized partisan gerrymandering in the 2017 redistricting process for state legislative maps. They will argue that the equal protection clause of the state constitution  guarantees more robust protections of voting rights than the federal constitution and that it also specifically commands that “all elections shall be free.”
The legislative defendants in the case contend that partisan gerrymandering is perfectly legal, and they’ve pushed back at allegations that they were underhandedly working with Hofeller before the redistricting process even began.
Other defendants in the lawsuit include the state and State Board of Elections and a group of Republican voters who intervened in the litigation.
Bob Phillips, Executive Director of Common Cause NC, said he is hopeful fair mapping will prevail in the state courts.
“We feel like … we might be getting close again to the beginning of the end of gerrymandering in North Carolina,” he said Wednesday in a phone interview.
He, like Daley, said he expected other states to be watching what happens in North Carolina because it could provide a roadmap for their own relief from partisan gerrymandering.
He added that litigation wouldn’t be necessary at all if Republicans had passed redistricting reform during their time in the majority – something they supported when they were in the minority.
“It really goes back to we wouldn’t have to be here if the folks who long wanted reform had passed it,” he said. “It’s too bad we’re at this point. But, we are ready to play it out and we will, and we do feel we have a great opportunity to win.”