Observations About North Carolina

Having had some more time to digest the (205-page!) decision striking down North Carolina’s congressional plan, I thought I’d share a few additional observations.

First, the decision demonstrates the manageability of the partisan gerrymandering test that was proposed in Whitford and applied here too. Under this test, a district map is invalid if (1) it was enacted with the discriminatory intent of benefiting a particular party and handicapping its opponent; (2) it has produced a discriminatory effect in the form of a large and durable partisan asymmetry in favor of the mapmaking party; and (3) no legitimate justification exists for this effect. Two federal courts and five judges have now employed the test without apparent difficulty. Even more encouragingly, the five judges were appointed by Carter, Carter, Reagan, George W. Bush, and Obama. In an area of law where outcomes often seem to follow party, this degree of bipartisan agreement is unusual and impressive.

Second, the court properly distinguished between the legal standard itself (the above three-part test) and quantitative evidence that is used to prove violations of the standard. This distinction eluded the defendants both here and in Whitford, who persistently conflated social science metrics with the underlying constitutional command. The court, though, observed that “plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward,” adding that “these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards.” The court further criticized the defendants for their “cynical” view that analysis should be discarded if it has “its genesis in academic research.” “It makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods.” “The Constitution does not require the federal courts to act like Galileo’s Inquisition and enjoin consideration of new academic theories.”

Third, the court clearly understood the core harm of partisan gerrymandering: that it entrenches the gerrymandering party in office, awarding it more legislative power than it deserves given its actual appeal to the electorate. The court repeatedly defined gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” The court also observed that gerrymandering “constitutes a structural [constitutional] violation because it insulates Representatives from having to respond to the popular will.” And warming the heart of constitutional law professors everywhere, the court twice cited John Hart Ely, the progenitor of the argument that judicial intervention is most necessary (and most appropriate in a democracy) when there has been a malfunction of the political process. Gerrymandering, of course, is the quintessential political malfunction.

Fourth, the court relied heavily on all of the evidence that was more abundant in this case than in Whitford. As I previously noted, this evidence included (1) several smoking-gun declarations of discriminatory intent; (2) data about three separate measures of partisan asymmetry: the efficiency gap, partisan bias, and the mean-median difference; (3) maps showing exactly how clusters of Democratic voters were either cracked or packed; and (4) computer simulations comparing the enacted plan to thousands of hypothetical maps. Thanks to this evidence, this case was far from a Whitford rerun. Also thanks to this evidence, it’s hard to imagine a more egregious gerrymander. The authors of the North Carolina plan gleefully boasted of their partisan motives, achieved some of the worst partisan asymmetries of the last half-century, and ensured that their handiwork would be immune to all but the biggest wave—all in a state whose political geography, according to the computer simulations, mildly favors Democrats.

Lastly, the court adopted the same remedy as the panel that previously struck down two North Carolina districts as racial gerrymanders: namely, giving the General Assembly two weeks to enact a lawful plan, and promising to implement a court-drawn map if the Assembly fails to do so. The court also required the Assembly to turn over the information the court will need to assess the legality of its work product: in particular, transcripts of all proceedings, criteria employed, alternative maps considered, and a “stat pack” showing the plan’s likely electoral performance. If this information reveals that the Assembly’s remedial plan continues to favor Republicans, the plan is unlikely to be upheld, and a special master probably will step in to craft a valid remedy.

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