In mid-January, yet again, a three-judge federal court ruled the redistricting work of the North Carolina General Assembly to be a knowing, intentional and hugely impactful violation of the U.S. Constitution. This time the court struck down the apportionment of our federal congressional districts as an impermissible, extreme, partisan political gerrymander – designed, admittedly and successfully, to entrench Republicans in power and handicap their adversaries. The state yawned. We’re used to it.
Rick Hasen, a professor at California-Irvine, is often said to be the nation’s leading election law expert. Hasen wrote that the decision could hardly be seen as a surprise, given what our legislature did. “If there is any case that could be invalidated as a partisan gerrymander, it is this one,” he indicated. It is “the most brazen and egregious” political electoral distortion yet seen in the United States. North Carolina leaders “admitted the practice, but argued it should be seen as perfectly legal.”
The Supreme Court stayed the federal court ruling pending appeal. And it is unlikely the review will be squeezed into the current term, given the late scheduling adjustments that would be demanded. The court presently has two political gerrymandering cases on the docket. But Hasen thinks the impact of the North Carolina decision will be felt immediately. The court now knows “what the future of gerrymandering will look like if it is doesn’t act in the Wisconsin or Maryland cases,” Hasen wrote. We point the way to darkness.
The U.S. Supreme Court has been unable to agree on a workable standard to evaluate political gerrymanders, though it has held that “partisan gerrymanders are incompatible with democratic principle.” As Justice Stevens has put it, such bias constitutes “an abuse of power that evinces fundamental mistrust of the voters, serving the self-interest of political parties at the expense of the public good.”
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The federal court, here, held that North Carolina Rep. David Lewis, architect of redistricting in the House, “acknowledged freely” that he sought to produce a potent political gerrymander. “I think electing Republicans is better than electing Democrats, so I drew this map to help foster what I think is better for the country,” Lewis said. “We used (redistricting) criteria to gain (political) advantage,” he conceded. The court said Lewis proposed to “give partisan advantage to 10 Republicans and 3 Democrats because he didn’t believe it possible to draw a map for 11 Republicans and 2 Democrats.” The court understated in concluding the General Assembly was “motivated by invidious partisan intent.”
The North Carolina congressional map, the federal judges ruled, was “planned and executed to entrench Republican control.” The state never even presented a legitimate democratic, constitutional or public interest to try to justify the manifest discrimination. Finally, the court cited expert testimony concluding the “extreme partisanship bias (was) of historic magnitude, not just relative to North Carolina history, but (that of) the United States.” Such “severe” distortion of the electoral process could not be squared with democratic government.
It is an odd routine to which we’ve become accustomed in North Carolina. We learn that, in our name, our leaders have given us the largest, most blatant and indefensible political gerrymander in American history. We’re unsurprised. They’re unashamed. They more likely jet off to an American Legislative Exchange Council meeting to brag about it.
Only a few months ago, another federal tribunal ruled that our state legislative redistricting plan, also proffered by the General Assembly, “represents the most extensive unconstitutional racial gerrymander ever encountered by a federal court.” Ever. In 2016, the massive voter-ID law, which the court found suppressed the rights of African-Americans with “surgical precision,” was described by national experts as the most aggressive electoral repression effort seen in the United States in a half century.
When the General Assembly decided to “reform” our unemployment compensation program, it ushered in the steepest cut to a state plan in American history. Over 170,000 Tar Heels lost their benefits and only 11 percent of our unemployed continued to receive compensation, lowest in the country. When legislators eliminated the earned income tax credit, raising the tax bill for hundreds of thousands of low income Tar Heels, we received “the dubious distinction,” according to the Center on Budget and Policy Priorities, of being the “only state to ever eliminate its EITC.” And this is not to mention the “pioneering bigotry” of HB2.
It may be hard to think of older, white, male Republicans as radical extremists. But they are what they are.
Gene Nichol is the Boyd Tinsley distinguished professor of law at the University of North Carolina.