Reprinted from Carolina Public Press

North Carolinians know, finally, what political maps they will use to elect representatives to the U.S. House in 2022. 

On Monday evening, the U.S. Supreme Court denied a request from state Republican legislative leadership to stop an order from state courts from going into effect. 

North Carolina will go forward with its primary elections on May 17, the candidate filing period that completed on Friday will stand, and a map that a panel of trial court judges drew will be used to elect the state’s 14 members of the U.S. House of Representatives, but only for this year’s election.  

Three conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, dissented and wrote they would have stopped that map from being used, instead reverting to the map the state Supreme Court declared an unconstitutional gerrymander and which would have all but guaranteed Republicans at least 10 of the state’s seats in the U.S. House. 

The congressional maps in use for 2022 are most likely to result in seven Republican seats, six Democratic seats and one toss-up seat, according to the data of how voters in each district voted in previous elections. 

“Today’s move by the court reinforces that legislatures do not have a ‘free pass’ to violate protections against partisan gerrymandering when drawing districts that undeniably hurt voters,” said Hilary Harris Klein, a voting rights lawyer at the Southern Coalition for Social Justice, which represents one of the plaintiffs, good-governance group Common Cause, in the lawsuit. 

Not over yet, maybe

A fourth conservative justice, Brett Kavanaugh, agreed that state Republicans’ arguments were strong but said it would be too disruptive for the federal courts to intervene this close to an election. 

“The issue is almost certain to keep arising until the Court definitively resolves it,” Kavanaugh wrote in his concurrence. 

Republicans may still get that chance, just not as soon as they would have liked. Kavanaugh suggested the case, or one raising similar constitutional questions, should be taken up for consideration in the next judicial term, which will get underway in the fall. 

In a press release Monday, N.C. Senate President Pro Tempore Phil Berger suggested state Republican leadership may do just that. 

“While we’re focusing on the 2022 elections, we will continue to evaluate this decision and next steps in this case,” Berger said. 

Berger, along with House Speaker Tim Moore and other Republicans responsible for drawing the state’s political maps, were the defendants in the redistricting lawsuits. 

Should the legislative Republicans request further review of the case, Kavanaugh along with the three dissenting justices have enough votes to put the case on the court’s docket, per the U.S. Supreme Court’s rules. To grant a stay, which is what Republican legislators requested in this filing, they would have needed five votes in favor.

Two more conservative justices, Chief Justice John Roberts and Amy Coney Barrett, voted with the majority this week. But Roberts has previously expressed interest in the legal theory that North Carolina’s legislative Republicans used in this case. 

Republican arguments rest on Article 1, Section 4 of the U.S. Constitution, which says the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

That should mean, North Carolina legislative Republicans argue, that state courts should not be able to put a check on the rules state legislatures make for federal elections. Only federal courts and Congress could check state legislative power over making those rules. 

The justices also denied a request for review coming out of Pennsylvania, which raised similar legal questions. 

North Carolina’s General Assembly will still get the chance to draw a new congressional map for the 2024 election cycle that, should it withstand lawsuits, could hold for the rest of the decade until the 2030 census triggers another round of redistricting.

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Reprinted from Carolina Public Press

This is an updated version of reporting published Wednesday.

Within hours of a three-judge Superior Court panel’s decision in North Carolina’s redistricting lawsuit, all four parties involved filed appeals spanning hundreds of pages to the state Supreme Court. 

Then, at 10 p.m. Wednesday, the state Supreme Court denied every appeal. Candidate filing was set to open at 8 a.m. Thursday. 

County elections staff worked feverishly with the N.C. State Board of Elections ​​in the 20-hour window from when they received the latest maps to the opening of candidate filing to be ready to place state and local candidates in the right districts. 

“As elections officials, we have become accustomed to adapting to quick-changing situations,” said Pat Gannon, spokesperson for the State Board of Elections.

Elections officials had to rush to prepare, not knowing if any of the appeals would be successful and if filing would start on time or be delayed yet again. 

For now, it looks as if the 2022 primaries will be held May 17. But there’s one possible legal twist yet to play out.

Republican leadership in the legislature, named as defendants in the redistricting case, are unhappy with part of the Superior Court panel’s decision, claiming it violates the federal constitution. 

Now that their appeal has been denied by the state Supreme Court, the defendants have an option to appeal to the U.S. Supreme Court. Those appeals usually take some time, and the high court accepts very few cases. It turned down appeals based on similar federal arguments from North Carolina Republicans in November 2020.

But with one new conservative justice on the U.S. Supreme Court and a new federal hook for state Republicans, it’s anyone’s guess what will happen this time around. State Republicans have not yet released a formal statement saying they will make a federal appeal.

How we got here

The Superior Court panel, consisting of Judges Graham Shirley II, R-Wake, Nathaniel Poovey, R-Catawba, and Dawn Layton, D-Richmond, managed to upset every party with its ruling on the maps Wednesday. 

The judges were guided by three special masters — former state Supreme Court Justices Robert Orr and Robert Edmunds Jr. and former UNC System President and Superior Court Judge Thomas Ross — who were themselves assisted by four nonpartisan experts in political map-drawing. 

The state Supreme Court had tasked the judicial panel with judging whether redrawn political maps were fair under the state’s constitution after the higher court declared the Republican-controlled General Assembly’s previous maps to be unconstitutional partisan gerrymanders. 

In a unanimous decision Wednesday, the Shirley panel said the redrawn state House and Senate districts were constitutional. But the judges ruled that the redrawn U.S. congressional map was still not fair under the state Supreme Court’s new standards. 

As a remedy, the Shirley panel adjusted the General Assembly’s map to make it fair under political science measurements that the state Supreme Court had suggested, called “efficiency gap” and “mean-median difference.” This map, the panel suggested, could be used for the 2022 election, and the General Assembly could redraw the map that would be used from the 2024 elections until the state redistricted again in 2031. 

Legislative defendants appeal

Republican legislative leaders Phil Berger, Senate president pro tempore, and Tim Moore, House speaker, both among the defendants in this case for their official roles in drawing political maps, said they will challenge the panel’s decision on the congressional map. 

“Today’s ruling is nothing short of egregious,” Moore said in an official statement. 

“The trial court’s decision to impose a map drawn by anyone other than the legislature is simply unconstitutional and an affront to every North Carolina voter whose representation would be determined by unelected, partisan activists.” 

Each of the Superior Court judges is in fact elected, as are the Supreme Court justices who ruled the prior maps were unconstitutional and who will review the appeals. Judicial elections were nonpartisan for 22 years and were publicly financed for nine until the General Assembly, led by Moore and Berger, made the elections partisan again and eliminated public funding in 2018 and 2013, respectively. 

Legislative defendants think that Article 1, Section 4 of the U.S. Constitution, often called the “time, place and manner restrictions,” give state legislatures exclusive jurisdiction over drawing federal election districts. 

Under this argument, the state courts cannot legally intervene when the state legislature draws maps for federal elections. The state Supreme Court previously dismissed this claim, meaning the legislative defendants will likely have to appeal to the U.S. Supreme Court to have a chance to win on this argument. 

Plaintiffs appeal 

Three groups sued the state in November and December to block the political maps the Republican-led General Assembly passed over Democratic opposition. Those maps were the ones ultimately overturned by the state Supreme Court on Feb. 4.

The General Assembly had two weeks to redraw the maps to seek Superior Court approval on Wednesday. 

In the mirror image of the legislative defendants, all three groups suing the state supported the Shirley panel’s intervention on the congressional map. 

One group, the good-governance and nonpartisan nonprofit Common Cause, appealed both the state House and state Senate maps. 

The group recognized that the General Assembly passed the House plan with near-unanimous bipartisan support, yet still opposed it and the Senate map, passed by Republicans on strict party-line votes, because each map still “dilutes the voting power of Black communities and relies on misleading data to cover up extreme partisan gerrymanders,” according to the group’s press release. 

The Common Cause plaintiffs were especially focused on the voting power of Black North Carolinians in the eastern part of the state, centered on Wayne County for the House map and Edgecombe, Wilson and most of Wayne in the Senate map. 

“We appreciate the bipartisan efforts of the trial court and special masters to remedy illegalities in the congressional map, but justice that is partial is no justice at all,” said Hillary Klein, senior voting rights lawyer at the Southern Coalition for Social Justice, which represents Common Cause, in the press release. 

Two other two plaintiff groups, the nonpartisan N.C. League of Conservation Voters and the National Redistricting Foundation, which is backed by the national Democratic Party, appealed only the state Senate map. 

The NCLCV plaintiffs also asked for the U.S. congressional map to last the rest of the decade, rather than allowing the General Assembly to try drawing the map again. 

In its opinion, the Shirley panel stated North Carolina’s political geography, or the way Democratic and Republican voters self-sort in where they live, explains why the Senate map favors Republicans. Even so, the panel stated in its opinion, the difference is within the fairness boundaries the state Supreme Court laid out. 

In their appeals, both the NCLCV and foundation plaintiffs disputed the panel’s analysis and claimed the map would only ever allow Republicans to have a majority in the state Senate, despite North Carolina being near a 50-50 state in partisan vote share. 

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Reprinted from Carolina Public Press

Political gerrymandering is dead in North Carolina, at least for now. 

The state Supreme Court issued an order late Friday striking down the Republican-drawn political maps slated to be used for the rest of the decade. Groups challenging the maps hit a grand slam, winning on each of their constitutional claims. 

A 4-3 majority of the Supreme Court found that the state legislative and congressional maps were “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause and the freedom of assembly clause of the North Carolina Constitution,” according to the order, written by Democratic Justice Robin Hudson. 

The North Carolina General Assembly will have to redraw maps and submit them by noon Feb. 18 to a three-judge panel in Superior Court for approval.

If the panel decides the General Assembly’s new maps don’t meet the court’s new standards, it can select maps submitted by the groups who sued the state. Whatever the trial court selects, the state or any of the challengers can appeal the decision by 5 p.m. Feb. 23. 

That’s the day before candidate filing is set to open again, so there is a chance North Carolina will see a repeat of what happened in December, when the courts shut down candidate filing — then reopened it, then shut it down again. 

Because of the tight timeline, the Supreme Court only issued an order, not an opinion, meaning that it told the relevant groups what they had to do next but did not describe the full legal justifications underpinning the decision. The opinion will be submitted later, according to the document. 

Chief Justice Paul Newby, a Republican elected in 2020, expressed his frustration with the decision in a snappy dissent, writing that the Democratic-majority court interpreted the constitution in such a way that left “no limits to this Court’s power.” 

Since the state constitution does not put an explicit limit on partisan gerrymandering, Newby argued, the only ways to do so are by statute or a constitutional amendment. Both would require the legislature to act to limit its own authority to draw partisan maps. 

Either the General Assembly takes the Supreme Court’s order and attempts to draw constitutional maps or takes the risk that the courts will choose maps submitted by the groups that sued. It will also have to submit the data it used to draw the maps and the methods used to measure partisan fairness. 

The Supreme Court recommended, but did not require, five different metrics for measuring the partisan fairness of a map. 

“​​To comply with the limitations contained in the North Carolina Constitution, which are applicable to redistricting plans, the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation,” the majority wrote.

But Newby wrote those guidelines are “vague and undefined,” meaning only the court itself will be able to define the constitutionality of new maps. 

“The question of how much partisan consideration is unconstitutional remains a mystery, as does what is meant by ‘substantially equal voting power on the basis of partisan affiliation,’” Newby wrote. 

The Republican-controlled legislature, which drew the maps and whose leaders are the named defendants in the case, can partially appeal the decision to the U.S. Supreme Court, at least regarding the congressional map.

Though it’s speculation, that appeal is likely, according to Catawba College political science professor Michael Bitzer. 

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Politicians are maneuvering, the courts are set to deliberate, and voters are continuing to wait for finalized political maps and a date for the North Carolina 2022 primary elections. 

On Wednesday, Republicans passed a bill on party-line votes in the House and Senate to again delay the primary elections, this time until June. This comes in the context of the political and legal fight over the state’s redistricting maps, which could shape the political future of the state’s legislature and U.S. congressional delegation for at least a decade. 

The current maps, which the legislature drew in the fall, would all but lock in Republican control over state politics. If the court overturns those maps, Democrats have a chance to land on a more even playing field in a state whose geography slightly favors Republicans but votes nearly 50-50 in statewide races. 

After a Democratic Party-affiliated group and two pro-democracy advocacy groups sued the state legislature over the maps they drew in the fall, the state Supreme Court delayed the elections from March to May to give courts time to review the case. 

Republicans now aim for an additional delay to give the legislature time to redraw the political maps should the court rule the current maps violate the state constitution. 

In the state courts’ landmark redistricting case from 2002, called Stephenson, the courts ruled the maps were unconstitutional, created some new requirements for drawing maps, and then asked the legislature to try again, said Michael Bitzer, a professor of political science and history at Catawba College. 

Political map-drawing “is an inherently legislative duty,” Bitzer said. 

Both through legal filings in the lawsuit and in public statements supporting postponement of the primaries until June, Republican leadership stresses the importance of the North Carolina General Assembly being able to draw and then redraw the maps.

But courts can and have, both at the state and federal levels, put conditions on how legislators can redraw maps once their first attempts are deemed unconstitutional. The courts could appoint a “special master,” or independent outside expert, to review the maps before approving them, Bitzer said. 

The state Supreme Court could also decide to go with an entirely different process should it deem the maps unconstitutional. In 2018, the Republican-controlled legislature made appellate judicial elections partisan. Now, the state’s highest court sits four Democrats and three Republicans, perhaps explaining Republican anxiety over the decision and timing of drawing new maps. 

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Reprinted from Carolina Public Press

A three-judge panel ruled against the challengers to North Carolina’s latest political maps, setting the stage for the N.C. Supreme Court to be the first appellate court in North Carolina to consider whether “extreme partisan gerrymandering” violates the state Constitution.

North Carolina’s political future rests heavily on the outcome of the case.

If the Supreme Court upholds the current maps, Republicans will very likely control the legislature for the next decade and help tip the balance in the U.S. House toward Republicans, even in elections where Democrats win upward of 55% of the statewide vote.

State lawmakers drew the maps after the latest census in a process that normally happens once a decade.

Three groups — N.C. League of Conservation Voters, the National Redistricting Foundation and the North Carolina chapter of Common Cause — filed suit against the state’s Republican legislative leadership and representatives who drew the maps.

The Superior Court judges, Graham Shirley II, a Republican of Wake County, Nathaniel Poovey, a Republican of Catawba County, and Dawn Layton, a Democrat of Anson County, acknowledged the influence of partisanship on the map-drawing process.

“This court has not been asked to eliminate all partisan gerrymandering, only ‘extreme’ partisan gerrymandering,” the order said. “In short, we are asked to decide how much partisanship is ‘extreme.’”

The 260-page order upheld the maps drawn to give a likely 10-4 advantage to Republicans in the U.S. House and similar advantages in the state legislature.

The judges said the maps are skewed with partisan intent to favor Republicans but that the courts do not have the power under the state Constitution to interfere in the map-drawing process, which the court called a political decision.

The court reached the same decision in the preliminary injunction state of the trial, leading to widespread anticipation of Tuesday’s outcome. But now that the ruling has been made, all three groups said they will appeal to the state Supreme Court, which is expected to hear the case in the next few weeks.

Each of the three groups of plaintiffs called the decision “disappointing” and “wrong.”

“If allowed to stand, these extreme gerrymanders would cause profound and lasting harm to the people of our state, especially hurting Black communities, by depriving voters of a voice in choosing their representatives,” said Bob Phillips, executive director of the North Carolina chapter of Common Cause, one of the plaintiffs.

N.C. House Speaker Tim Moore, R-Cleveland, one of the named defendants in the case, celebrated the ruling.

“I am pleased the trial court has ruled in our favor, upholding the maps drawn by the General Assembly in the most transparent process in North Carolina history,” Moore said.

Secret maps, partisan intent

During the trial, Rep. Destin Hall, R-Caldwell, said he drew the maps for the state House legislative districts using “concept maps,” or maps drawn by third parties, in creating the lines — a direct contradiction of his earlier statements.

He previously told Democratic lawmakers in October in the redistricting committee that he had not looked at any concept maps in drawing the legislative districts. At that point, he hadn’t, Hall said, but he started using them shortly thereafter.

But he again told Democratic lawmakers in November, during debates before Republicans passed the maps on a party-line vote, that he did not consult any concept maps. At that point, Hall had consulted the outside maps for about three weeks, according to his testimony during the January trial.

Attorneys for the plaintiffs asked for copies of the concept maps, but Hall said they have since been lost or destroyed. The failure to retain them could be a violation of state law.

A lawyer for the Common Cause plaintiffs, Allison Riggs, discovered the discrepancy during Hall’s deposition the week before the trial. She argued the maps could have used partisan and racial data, both of which were banned in the map-making process by the legislature’s own rules, but since they were destroyed there is no way to know.

The secret maps, misleading Democratic lawmakers and the maps’ destruction all pointed to intent, Riggs said.

In an earlier ruling, the trial court declined to impose sanctions for the failure to produce the maps, saying the assistant to Hall who had the maps is no longer a legislative employee.

What the ruling said

Relying heavily on historical analysis, the three-judge panel rejected the plaintiffs’ claims that the new maps violated state constitutional guarantees of free elections, equal protection, freedom of assembly and free speech.

The judges also condemned gerrymandering and its ill effect on the body politic but said the courts did not have the power to interfere.

“This court neither condones the enacted maps nor their anticipated potential results,” the order said.

“Despite our disdain for having to deal with issues that potentially lead to results incompatible with democratic principles and subject our state to ridicule, this court must remind itself that these maps are the result of a democratic process.”

Lawyers for the plaintiffs argued that the legislature drew the maps with partisan intent meant to discriminate against the political interests of Democrats and Black North Carolinians.

Intent is important, according to the trial court order, but there is a lack of racially motivated action in the current map-drawing process.

“Plaintiffs have shown, and the court agrees, that a substantial number of Black voters are affiliated with the Democratic Party,” the order read.

“What plaintiffs have not shown, however, is how the General Assembly targeted this group on the basis of race instead of partisanship. Black voters who also happen to be Democrats have therefore been grouped into the partisan intent of the General Assembly.”

During the trial, the plaintiffs’ academic experts in political science and mathematics testified that the Republican-drawn maps heavily favored Republican candidates.

If the maps were used, Republicans would essentially guarantee majority control over the state legislature, with a real chance at a veto-proof supermajority. Republicans would also send a disproportionate majority of the state’s representatives to the U.S. House, according to the expert testimony cited in the order.

While that outcome might be natural in a heavily Republican state, Republicans actually trail both Democrats and unaffiliated voters in registration in North Carolina.

Registration is no guarantee of voting habits, but recent statewide elections suggest the state is nearly evenly split between voters backing each party in a given race. In 2020, Democrats carried the governor’s race, but Republicans had a plurality victory for president in North Carolina, while eking out a narrow win for state Supreme Court Chief justice.

What’s next

The state Supreme Court did not set out a specific timeline for reviewing the case but required anyone wanting to appeal to do so in the next two days. The court said to expect expedited hearings.

Democrats occupy four seats of the state Supreme Court while Republicans hold three.

The plaintiffs asked Republican Justice Phil Berger Jr. to recuse himself from the case as Berger’s father is a named defendant and the Republican leader of the state Senate.

The defendants asked Democratic Justice Sam Ervin to recuse himself, as he is up for reelection this year and the decision he makes “may impact voter turnout or other factors of the general election,” according to the request.

Neither justice has yet responded. Their decisions over their own ability to rule impartially are final, according to a state Supreme Court order from Dec. 23.

Unless the justices decide to delay the state primaries yet again, they will need to make their ruling and finalize any new maps, if necessary, before Feb. 24, the date submitted by the State Board of Elections and ordered by the trial court to resume candidate filing.

The high court moved North Carolina’s 2022 primaries to May 17. Every state House and Senate seat is up for election, as are all 14 seats for the U.S. House of Representatives.

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