Politics & Government

Supreme Court will hear NC gerrymandering case soon, potentially breaking new legal ground

The United States Supreme Court will hear arguments in March over whether the districts used to elect North Carolina’s members of the U.S. House of Representatives are unconstitutional.

The court announced Friday that “the case will be set for argument in the March argument session,” along with a similar Maryland case.

If the state wins, the 2020 elections will likely be held using the same districts as during the 2018 elections, when Republicans won or led for 10 of North Carolina’s 13 seats in the U.S. House — although one of those seats might have a second election ordered, due to allegations of fraud. But if the challengers win, the state could be forced to redraw the districts in a way that could give Democrats better chances of flipping some seats in 2020.

This case is one of two lawsuits claiming that after losing previous lawsuits on racial gerrymandering, the North Carolina General Assembly’s Republican-led majority then engaged in partisan gerrymandering meant to make it harder for Democrats to elect their preferred candidates. The other court case, which is proceeding in state court rather than in federal court, is challenging the lines used to elect members of the General Assembly.

The challengers in the federal case won once before, when a panel of lower-court judges ruled the districts unconstitutional last summer. In that ruling, the judges wrote that “the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others.”

But that ruling came close enough to the 2018 elections that the judges decided to allow the elections to go on using the disputed lines.

Rick Hasen, an election law expert at the University of California-Irvine, tweeted that it’s very possible the challengers won’t get the same result from the Supreme Court because “the conservatives on the Court are skeptical federal courts can police gerrymandering.”

However, an election law expert from Duke University Law School, Guy-Uriel Charles, said in an interview Friday that he doesn’t think there’s a clear majority on the court for one side or the other. He agreed that the court has been skeptical of weighing in on partisan gerrymandering in the past. But he said the North Carolina and Maryland districts are such extreme examples of gerrymandering, compared to the rest of the country, that there’s a chance the court takes at least some small steps to crack down on them specifically.

“I don’t think it’s going to be sweeping,” Charles said. “I think it’s going to be very, very narrow.”

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Bill D’Elia, a spokesman for North Carolina Senate leader Phil Berger, defended Republicans’ record on redistricting and criticized Democrats for only raising complaints after the party lost control of the state legislature, which is in charge of drawing the lines.

“Democrats didn’t have a problem with redistricting for the 140 years they reigned in North Carolina, but since 2011 they’ve tried to convince any judge that’ll listen to redraw maps that favor Democrats,” he said in an email. “We hope the Supreme Court finally puts this nonsense to rest and that Democrats go back to the old fashioned way of winning elections: convincing people to vote for them.”

But Allison Riggs, senior voting rights attorney for the Durham-based Southern Coalition for Social Justice, which represents some of the challengers in the case, said the way Republicans drew the lines to favor their party was clearly unconstitutional.

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“In North Carolina, Republican legislative leaders bragged that they were drawing a plan that advantaged Republicans to the maximum extent possible and discriminated against Democrats. This kind of outrageous behavior most certainly crosses the line of constitutionality, and if the Supreme Court does not intervene, our democracy will pay the price,” she said in an emailed statement.

The plaintiffs challenging the districts include individual voters as well as the government watchdog group Common Cause and the League of Women Voters of North Carolina. Common Cause is also a plaintiff in the Maryland case.

And while the North Carolina case targets maps that favor Republicans, the group’s Maryland case targets maps that favor Democrats.

“Whether it is Democrats or Republicans manipulating the election maps, gerrymanders cheat voters out of true representation,” Karen Hobert Flynn, president of Common Cause, said in a press release. “The Supreme Court has the opportunity to set a clear standard that will restore a meaningful vote to millions of Americans disenfranchised by gerrymanders in Maryland, North Carolina and across the country.”

While the Supreme Court has issued numerous opinions in recent years against racially based gerrymandering, it has not done so with partisan gerrymandering. That’s the issue at the heart of the Maryland and North Carolina cases as well as a third case out of Wisconsin, which the Supreme Court sent back to a lower court for further arguments last year.

Will Doran reports on North Carolina politics, with a focus on state employees and agencies. In 2016 he started The News & Observer’s fact-checking partnership, PolitiFact NC, and before that he reported on local governments around the Triangle. Contact him at wdoran@newsobserver.com or (919) 836-2858.