BREAKING: Divided Three Judge Court Holds North Carolina Congressional Redistricting an Unconstitutional Partisan Gerrymander, Considers New Districts for 2018 Elections

In a case with potentially national implications both short term and long, a three judge district court in North Carolina has held that the congressional redistricting plan—put in place after North Carolina’s districts last time were found to be a racial gerrymander—are an unconstitutional partisan gerrymander. The remedy is not set yet, but the court may have a remedy in place for the 2018 elections, something I find surprising.

You can find the 321 pages of opinions (which consists mostly of a majority opinion by Judge Wynn) at this link. If this opinion stands (and given the current 4-4 split on the Supreme Court, any emergency action could well fail, leaving the lower court opinion in place), the court may well order new districts be drawn in time for the 2018 elections.

Today’s case is one that the Supreme Court ordered reconsidered in light of its decision in Gill v. Whitford requiring plaintiffs to demonstrate that they have standing in each district in order to be able to sue for a partisan gerrymandering claim.

In today’s opinion, the court finds that there is standing, and then goes on to find that the partisan gerrymandering is unconstitutional on the merits.  Here’s what the court writes in the introduction on the merits:

As to the merits, a common thread runs through the restrictions on state election regulations imposed by Article I, the First Amendment, and the Equal Protection Clause: 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. In particular, Article I preserves inviolate the right of “the People” to elect their Representatives, and therefore bars the States from enacting election regulations that “dictate electoral outcomes” or “favor or disfavor a class of candidates.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995). Similarly, the First Amendment prohibits election regulations that “restrict the speech of some elements of our society in order to enhance the relative voice of others.Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam). And the Equal Protection Clause embodies the foundational constitutional principle that the State must govern “impartially”—that “the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis v. Bandemer, 478 U.S. 109, 166 (1986) (Powell, J., concurring in part and dissenting in part). That the framers of the Constitution and the Reconstruction Amendments sought to protect this principle through three different constitutional provisions only reinforces its centrality to our democratic system.

Partisan gerrymandering—“the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015)—strikes at the heart of this foundational constitutional principle. By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another. Thornton, 514 U.S. at 833–34. By intentionally ensuring that Representatives from one party have a disproportionate voice in Congress, it also “restrict[s] the speech of some elements of our society”—voters who do not support the policies embraced by the favored party—and “enhance[s] the relative voice of others”—voters who support the favored party. Buckley, 424 U.S. at 48–49.

And by favoring the viewpoints of one group of voters over another, it runs afoul of the Government’s constitutional duty to “treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis, 478 U.S. at 166. Put differently, by intentionally seeking to entrench a favored party in power and make it difficult—if not impossible—for candidates of parties supporting disfavored viewpoints to prevail, partisan gerrymandering “seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994). But “‘[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market,’ and the people lose when the government is the one deciding which ideas should prevail.” Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2375 (2018) (emphasis added) (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)). Partisan gerrymanders, therefore, “raise the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” Turner Broad., 512 U.S. at 64 (internal quotation marks omitted).

That is precisely what the Republican-controlled North Carolina General Assembly sought to do here. The General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on “political data”—that is, past election results specifying whether, and to what extent, particular voting precincts had favored Republican or Democratic candidates, and therefore were likely to do so in the future—to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the State’s congressional districts, and would continue to do so in future elections. Ex. 1007. And the Republican-controlled General Assembly achieved that goal. As detailed below, the 2016 Plan led to Republican candidates prevailing by “safe” margins in the vast majority of the State’s thirteen congressional districts. Put differently, the General Assembly’s Republican majority “decid[ed] which ideas [w]ould prevail” in the State’s congressional elections. Becerra, 138 S. Ct. at 2375.

In doing so, they deprived Democratic voters “of their natural political strength” by making it difficult for such voters to raise money, attract strong candidates, and motivate fellow party members and independent voters to campaign and vote. Gill, 138 S. Ct. at 1938 (Kagan, J., concurring).

Legislative Defendants1 drew a plan designed to subordinate the interests of non- Republican voters not because they believe doing so advances any democratic, constitutional, or public interest, but because, as the chief legislative mapdrawer openly acknowledged, the General Assembly’s Republican majority “think[s] electing Republicans is better than electing Democrats.” Ex. 1016, at 34:21–23. But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, “those who govern should be the last people to help decide who should govern.” McCutcheon v. Fed Election Comm’n., 572 U.S. 185, 134 S. Ct. 1434, 1441–42 (2014) (plurality op. of Roberts, C.J.). Indeed, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S. Ct. at 2677 (internal quotation marks omitted). Accordingly, and as further explained below, we conclude, with one narrow exception,2 that Plaintiffs prevail on all of their constitutional claims.3

The result in this case is not a surprise, given where this panel was before the Supreme Court sent this case back and given that North Carolina’s gerrymandering was one of the most brazen in the nation, where state legislative leaders proudly pronounced it a partisan gerrymander (to negate an argument that it was a racial gerrymander). As I’ve written, if what North Carolina did goes, then the next round of redistricting will be an anything goes round of redistricting across the country. We will see the most egregious partisan gerrymanders imaginable.

So the court decision is not a surprise in this regard, but it is surprising on the timing. The court has opened the possibility of giving the state the chance to draw new maps, or maybe appointing a special master, all in line with the idea of replacing the districts with cured districts in time for the 2018 elections, where primaries have already been held

Given the closeness of the election, this is somewhat surprising. We know that the Supreme Court has not liked interim remedies in redistricting and election cases close to the election, and it has often rolled back such changes, Indeed, I expect legislative leaders are on the phone with Paul Clement now planning to go to the Supreme Court to ask for an emergency stay of this order. (Think it is too early? Read Abbott v. Perez from last term.)

But this time there’s a difference at SCOTUS: with Justice Kennedy’s retirement, we have a 4-4 Court. A few weeks ago, I thought of writing a piece for Slate arguing that now would be the perfect time for the three-judge court to act in this case, because the Court is divided 4-4 and in that case the lower court ruling would stand. But given that primaries are done, and ballots needing to be printed very soon, I thought it would be too late for a lower court to try it.

And it could be that if Clement goes to SCOTUS, Justices Breyer and Kagan could agree that it is too late and agree on an order to delay this until the Court can consider the issue as a whole next term and before the 2020 elections. So the key to this is Breyer and Kagan, I think, and I’m not sure how they will go.

In the longer term, the Court will be likely to take this case, because it is an appeal finding a partisan gerrymander, and the four conservative Justices won’t let that stand, and they’ll soon by joined by Judge Kavanaugh to likely hold partisan gerrymanders completely non-justiciable (as they were going to do in Gill if they had Kennedy’s vote).

But if the lower court orders new districts for 2018, and the Supreme Court deadlocks 4-4 on an emergency request to overturn that order, we could have new districts for 2018 only, and that could help Democrats retake control of the U.S. House.

As for what the election would look like, the court is contemplating no primaries, and maybe a runoff:

However, this case presents unusual circumstances. To begin, the General Assembly has abolished primary elections for several partisan state offices. N.C. Democratic Party v. Berger, 717 Fed. App’x 304, 305 (4th Cir. 2018) (per curiam). Accordingly, the General Assembly has concluded that, for at least some partisan offices, primary elections are unnecessary. Therefore, were this Court to order the State to conduct a general congressional election without holding primary elections, that would be consistent with the General Assembly’s policy preference as to at least some offices.

[This post has been updated.]

 

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