North Carolina voters may have a front row seat over the next two weeks to watch Republican lawmakers correct their redistricting wrong of using extreme partisan gerrymandering to dilute Democrats’ collective voting strength and to entrench their own political party in power.
A panel of three Superior Court judges unanimously struck down 2017 House and Senate maps in a 357-page ruling Tuesday, giving lawmakers two weeks, until Sept. 18, to draw new districts in “full public view” without the use of election data.
They wrote in their ruling that the 2017 House and Senate districts challenged in Common Cause v. Lewis were “significantly tainted in that they unconstitutionally deprive every citizen of the right to elections for members of the General Assembly conducted freely and honestly to ascertain, fairly and truthfully, the will of the People.”
“The Court bases this on the inescapable conclusion that the 2017 Enacted Maps, as drawn, do not permit voters to freely choose their representative, but rather representatives are choosing voters based upon sophisticated partisan sorting,” it states. “It is not the free will of the People that is fairly ascertained through extreme partisan gerrymandering. Rather, it is the carefully crafted will of the map drawer that predominates.”
Senate President Pro Tem Phil Berger (R-Rockingham) released a statement criticizing the ruling, but also indicating there wouldn’t be an appeal. House Speaker Tim Moore and redistricting leaders, Rep. David Lewis (R-Harnett) and Sen. Ralph Hise (R-Mitchell), did not respond Tuesday to an email seeking comment from Policy Watch.
“We disagree with the court’s ruling as it contradicts the Constitution and binding legal precedent, but we intend to respect the court’s decision and finally put this divisive battle behind us,” Berger stated in the release. “Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on.
“To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”
The statement was a surprise to most, who were expecting Republican legislative leaders to appeal the case right away. If an appeal is forthcoming though, the North Carolina Supreme Court would have the last say in the case and it would not be eligible for federal review since findings were based on state law.
The court, on its own motion, denied staying the remedial process pending any potential appeal. It will also use a “referee” to help evaluate the legislature’s remedial maps and draw new ones if necessary.
‘All elections shall be free’
The judges ordered lawmakers to use only traditional redistricting criteria in the remedial process – including equal population, contiguity and compactness – and said they could not use the unconstitutional maps as a starting point. If lawmakers want to retain anyone other than legislative employees to help draft the new maps, they have to seek court approval, according to the ruling.
At a minimum, the judges mandated that the remedial redistricting process requires all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers.
“Given what transpired in 2017, the Court will prohibit Legislative Defendants and their agents from undertaking any steps to draw or revise the new districts outside of public view.”
The judges who presided over the case, including the two-week-long trial in July, are Alma Hinton, of Halifax County, Paul Ridgeway, of Wake County – both of whom are registered Democrats – and Joseph Crosswhite, a registered Republican from Iredell County.
“The conclusions of this Court today reflect the unanimous and best efforts of the undersigned trial judges – each hailing from different geographic regions and each with differing ideological and political outlooks – to apply core constitutional principles to this complex and divisive topic,” their ruling states.
They outlined a “dizzying succession of litigation” voters have been subjected to since 2011 over North Carolina’s legislative and Congressional districts in state and federal courts. Yesterday, they wrote, marks the third time the same trial court has entered judgment. Two times, the North Carolina Supreme Court has spoken. Eight times, the United States Supreme Court has ruled.
Partisan intent dominated the drawing of the 2017 legislative maps, and the court said it violated the equal protection clause of the North Carolina constitution, the right to associate, to speak freely through voting, and to participate in free elections.
“It is not the province of the Court to pick political winners or losers,” the ruling states. “It is, however, most certainly the province of the Court to ensure that ‘future elections’ in the ‘courts of public opinion’ are ones that freely and truthfully express the will of the People. All elections shall be free — without that guarantee, there is no remedy or relief at all.”
Common Cause North Carolina, a named plaintiff in the lawsuit, hailed the ruling a landmark in state history.
“This is a historic victory for the people of North Carolina,” said Executive Director Bob Phillips. “The court has made clear that partisan gerrymandering violates our state’s constitution and is unacceptable. Thanks to the court’s landmark decision, politicians in Raleigh will no longer be able to rig our elections through partisan gerrymandering.
“What’s crucial now is ensuring that the legislature fully complies with the court’s order and draws new legislative districts in a timely fashion, with full transparency and robust public input, absolutely free from gerrymandering.”
In a phone briefing after the ruling, Phillips – who has been lobbying for redistricting reform for 20 years – particularly praised the judges for outlining how lawmakers should go about the remedial process and for mandating full transparency.
“These are the kinds of things that those of us who have been advocates for redistricting reform legislation have dreamed and wanted for so long, and to have this kind of prescription by this court is just outstanding,” he said.
Stanton Jones, the lead attorney for the plaintiffs in Common Cause v. Lewis, also applauded the judges’ ruling to force lawmakers into a fully public process.
“Unlike prior redistricting this decade, which has occurred overwhelmingly in secret with no opportunity for meaningful public engagement or observation, this process will be public,” he said. “The people of North Carolina will be able to attend and watch at hearings as attempts are made to actually draw new lines.
“Our hope and expectation is that through that robust transparency, the courts’ order today will ensure that the new lines are indeed fair and allow for people to participate in free election.”
A framework for other states
Jones said the ruling should serve as a framework for other states to evaluate their own redistricting processes.
“There are a number of other state constitutions around the country that include free election clauses similar or even identical to the one in North Carolina that forms the primary basis for the court’s rule today,” he said.
Jones added that state equal protection provisions and free speech and assembly provisions around the country can be construed to provide broader protections for voting rights “and to prohibit partisan gerrymandering even when the U.S. Constitution and the U.S. Supreme Court have refused to do so.”
He didn’t identify any definitive future plans for litigation, but said the court’s ruling should be applied fairly to both legislative and congressional mapmaking.
The North Carolina ruling is the first since the U.S. Supreme Court said earlier this year that even the most extreme partisan gerrymandering was out of its reach. It left the issue instead up to the states. Lawmakers tried to argue at the time that it should be an issue decided by legislators, not the judicial branch.
The plaintiffs – which, in addition to Common Cause, included the North Carolina Democratic Party and several individual voters – relied heavily on mathematical and statistical data to depict the state’s 2017 legislative maps as partisan outliers.
They also used files from late GOP mapmaker Thomas Hofeller’s computer hard drives to show how partisan intent dominated the redistricting process. Hofeller’s daughter turned over his digital data to the plaintiffs after his death, and the evidence has been described by many as a “smoking gun.”
“This is truly a case of a person’s worth ringing from the grave,” said Kathay Feng, Common Cause’s National Redistricting Director. “These Hofeller files have become critical to revealing the truth behind a number of the schemes that [he] was involved in, from the efforts to add a citizenship question to the Census to the North Carolina court’s finding that the [state] legislature had engaged in unconstitutional partisan gerrymandering.”
The court had approved the plaintiffs to use 35 specific files from the “Hofeller files” for trial, but the rest – over 75,000 documents – are still at the center of a legal dispute about whether they should remain confidential.
Feng said Hofeller had been working on redistricting in multiple states before his death, and Common Cause expects there is additional evidence that needs to come out from the mapmaker’s files about the extent of partisan gerrymandering in those areas.
“As we start to embark on the next round of redistricting, it’s time for us to reveal the truth and to establish clear standards for what redistricting should be following and move away from these unconstitutional methods that have become so popular in the last decade,” she said.
‘The single best news’
Sadie Weiner, a spokesperson for Gov. Roy Cooper, said in an email Tuesday night that the unanimous decision shows that “partisan gerrymandering not only violates our constitution but hampers the people’s ability to elect a legislature that is truly reflective of our state.”
Republican legislators were mostly silent on social media Tuesday after the court’s ruling. Democratic lawmakers celebrated the ruling.
“Folks I’ve been in the NC legislature for about five years and this is the single best news I have ever heard,” tweeted Sen. Jeff Jackson (D-Mecklenburg).
He added later, “With fair maps, we have a genuine shot at electing a state legislature that actually reflects the political will of our state.”
Senate Democratic Leader Dan Blue (D-Wake) said in a news release that the ruling sends a clear message to politicians.
“For close to a decade, the General Assembly has not reflected the make-up or the will of North Carolina voters,” he said. “That will change in 2020. The three-judge panel noted in its decision, ‘it is the carefully crafted maps, and not the will of the voters, that dictate ….the majority control of the General Assembly.’ This carefully crafted majority in the General Assembly has determined the direction of our state.
“With this ruling, and the redistricting remedy ahead of us, we can redirect the course of our state to one that benefits all North Carolinians. This ruling truly resurrects democracy.”
Rep. Graig Meyer (D-Caswell, Orange), who testified at the trial, called the ruling a “game changer” for 2020.
“North Carolina voters deserve for their voices to be heard,” he said. “That means fair maps. I remain committed to the fight to defend our democracy and end partisan gerrymandering once and for all.”
Read the court’s 357-page ruling here.