RALEIGH, NC – When the U.S. Supreme Court this year declared federal judges had no business deciding cases about political gerrymandering, it also said state courts had every right to address the issue — and have they ever in North Carolina.
Within four months, state judges hearing two separate cases struck down dozens of North Carolina legislative districts and stopped the use of the congressional district map in 2020 elections. In both cases, judges said evidence indicates Republican lawmakers violated the state constitutional rights of free elections, free speech and equality by shuffling Democratic voters into districts in ways that made it nearly impossible for the GOP to lose its majorities.
In response, the Republican-led General Assembly has redrawn its own districts and is likely in November to also reshape congressional districts. That could lead to Democratic gains in next year's elections.
The North Carolina court decisions could prompt similar lawsuits in other states challenging partisan gerrymanders on state constitutional grounds, particularly following the next round of mandatory redistricting after the 2020 census.
"I would expect to see a large increase in the number of state court cases filed around the country in 2021," said Paul Smith with the Campaign Legal Center in Washington, which has represented gerrymandering plaintiffs in North Carolina and Wisconsin.
The North Carolina judges said extreme political gerrymandering violates a free elections clause in the state constitution — the same reasoning cited by the Pennsylvania Supreme Court when it struck down that state's Republican-drawn congressional map in January 2018.
North Carolina and Pennsylvania are among 30 states with similar state constitutional requirements for "free" elections, according to the National Conference of State Legislatures. Of those, 18 also require "equal" or "open" elections, and 15 further protect the right to vote from interference by "civil or military" powers.
This past week's injunction against North Carolina's congressional districts also cited the state constitution's guarantee of "equal protection" for all people and its right to free speech and association — common provisions in other state constitutions.
Similar cases in other states may hinge on whether judges — some of whom hold office under Republican or Democratic banners — are willing to act as assertively as those in North Carolina.
"It's not so much an issue of magic words or something like that," said Michael Li, a redistricting attorney at the Brennan Center for Justice at the New York University School of Law. "It's really more whether courts are willing to take the values that may be in state constitutions and then apply them to an area that they've never applied it to."
Some advocates would prefer permanent changes to how lines are drawn, through ballot initiatives and legislation that remove mapmaking power from legislators and gives it to independent commissions.
"Litigation is a hard and painful road," said Kathay Feng, national redistricting director for Common Cause. The group was a plaintiff in the U.S. Supreme Court case decided in June , which also focused on North Carolina's congressional map. The goal, Feng said, is to "make changes where each 10 years we're not facing that same uphill ... climb."
Common Cause was also a plaintiff, along with Democratic voters and the state Democratic Party, in the state court lawsuit leading to the Sept. 3 ruling striking down nearly 80 state legislative districts. It was the first state court decision nationwide against partisan gerrymandering since the U.S. high court's June decision.
That ruling effectively ended similar federal court cases alleging partisan gerrymandering by Republican-led legislatures in Michigan, Ohio and Wisconsin. It also overturned a ruling against a Maryland congressional district that had been gerrymandered by Democrats.
But unlike in North Carolina, none of those other claims were revived with new state court lawsuits. Political circumstances changed in the other states. Michigan and Ohio voters approved 2018 ballot measures designed to decrease partisan influence in redistricting after the 2020 census. Wisconsin voters in 2018 replaced Republican Gov. Scott Walker with Democratic Gov. Tony Evers, who could veto redistricting plans from a Republican-led Legislature.
In North Carolina, Democratic Gov. Roy Cooper lacks that veto power.
Republicans have criticized the recent North Carolina court decisions as judicial activism spurred by Democrats trying to regain power they held for decades before the GOP won legislative majorities in 2011 and pressed a right-leaning agenda on taxes, spending and social issues. The two North Carolina state court cases have been bankrolled in part by an arm of a national Democratic group.
The judges have shown "a flawed approach to redistricting law" and "found something in the constitution that no one has seen before," Republican Senate leader Phil Berger told reporters after the congressional decision.
Republicans didn't appeal the judges' legislative redistricting ruling, deciding instead to draw replacement maps in accordance with the court order. That has resulted in an improved process, members of both parties say, signaling the litigation could have a long-term impact on North Carolina mapmaking.
The new state legislative districts had to be drawn in open committee meetings and on computer screens that were posted online. The judges also barred the use of partisan data and election results.
Republican House Speaker Tim Moore said he now anticipated a similar process with a new congressional map.
"It will happen in an open, transparent way, just as we had before," Moore said.
Lieb reported from Jefferson City, Missouri.