Michael Wines for the NYT:
Voting-rights advocates are in a North Carolina state court in Raleigh this month, arguing in three lawsuits that Republican gerrymanders of the State Legislature and the state’s 14 seats in the House of Representatives are so extreme that they violate the state Constitution.
Only two years ago, some of the same lawyers were arguing that remarkably similar Republican gerrymanders of the same legislature, drawn a decade ago, violated the same clauses of the constitution. That trial ended with a resounding verdict in their favor, but only after the gerrymandered maps were used for almost a decade.
Winning those kinds of cases, however belatedly, now appears much more of a long shot. Experts say that even as gerrymanders become ever more egregious, the legal avenues to overturn them are becoming narrower.
“The good news is that litigation will probably go a little faster than in the last decade,” Richard L. Hasen, an election-law expert at the University of California, Irvine, and a longtime critic of gerrymanders, said this past week. “The bad news is that it will progress faster because the plaintiffs will lose.”…
Under Voting Rights Act rules in place before the Supreme Court gutted the law in 2013, “the Justice Department wouldn’t have approved these maps,” said Allison Riggs, the co-executive director of the Southern Coalition for Social Justice, which is representing plaintiffs in one lawsuit.
But that is not the only legal avenue constricted in recent years.
The Supreme Court in 2019 ended a decades-long debate over the constitutionality of partisan gerrymandering, saying it was up to Congress, not the courts, to fix politically skewed maps.
The court also has made it harder to prove that political districts were drawn to reduce minority voters’ clout, a violation of the remaining rules of the Voting Rights Act. A 2018 Supreme Court ruling in a Texas case said that a state’s record of racial discrimination in redistricting — long a factor in such cases — couldn’t override the assumption that lawmakers were acting in good faith, even when they drew districts that clearly locked in their own power.”
That ruling, with the green light for partisan gerrymandering, is prompting lawmakers to try to dodge lawsuits with a new argument: Maps that dilute minority votes aren’t racially biased. They’re just efforts to neuter political rivals….
Given the long odds facing federal lawsuits, the switch to state courts may become a trend. “There’s a surprising number of opportunities for these state constitutional challenges,” said Marina K. Jenkins, the director of litigation and policy at the National Democratic Redistricting Committee, an arm of the Democratic Party.
The reason is that states offer a clear avenue to attack unfair maps that is absent in federal lawsuits. Forty-nine state constitutions enshrine a right to vote (Arizona, the exception, has an implicit voting-rights guarantee), and 30 require that elections be free or “free and equal.” The federal Constitution contains neither clause.
Both a North Carolina three-judge panel in 2019 and the Pennsylvania Supreme Court in 2018 cited guarantees of free and equal elections in rulings striking down partisan gerrymanders. That could guide other states in interpreting similar clauses, said Joshua A. Douglas, an expert on state election laws at the University of Kentucky law school.