North Carolina: State of Litigation

The current extremist super-majority in the North Carolina General Assembly has systematically attacked fair elections to the point that the state legislature no longer represents the will of the people of North Carolina. These unpatriotic attacks on American Democracy have resulted in multiple court cases, costing North Carolina taxpayers millions of dollars.  We need fair elections, including  making the process of drawing electoral maps impartial and transparent, so that the North Carolina government is of, by and for the people.

Almost half of the redistricting cases in the whole country are cases coming out of North Carolina.  The Brennan Center for Justice lists 12 redistricting cases in the USA, and 5 of those listed are from North Carolina* (counting the combined LWV and Common Cause cases as one case).

Depending on how you count them, there are five or six ongoing cases based on North Carolina’s 2011 electoral district maps drawn by Thomas Hofeller, an out-of-state private consultant hired by the DC-based Republican State Leadership Committee.

         –  SIDE NOTE: Different states have different processes to draw electoral districts – some have independent commissions involved with the redistricting process.   NC is one of only a handful of states in which the state legislatures draws the districts AND the governor has no power to veto to the maps.

NC Cases Challenging Racial Gerrymandering

  • Covington V. North Carolina: A Federal District Court three-judge panel found North Carolina’s State House and State Senate Districts were unconstitutional and violated the Equal Protection Clause of the Fourteenth Amendment because of impermissible racial gerrymandering. The Court issued an order requiring the North Carolina General Assembly to redraw the districts and hold special elections in November 2017. The NC GOP appealed the case to SCOTUS, and then requested that the court issue a temporary “stay” (or halt) of the lower court’s order to hold special elections in 2017, which has been granted.
  • Harris v. McCrory: In Harris, the Federal District Court found North Carolina’s US Congressional Districts to violate the Equal Protection Clause of the Fourteenth Amendment because of impermissible racial gerrymandering. The Supreme Court of the United States (SCOTUS) heard oral arguments on Harris in December, but has not published a ruling on the case.
  • Dickson v. Rucho: Originally filed in North Carolina Sate Court, Dickson challenged North Carolina’s 2011 congressional map. The case went to the NC State Supreme Court, then went up to SCOTUS, which sent it back to North Carolina with instructions to “try again” (I am paraphrasing) in light of SCOTUS rulings, the NC Supreme Court tried again, and now the case has been appealed to SCOTUS again.

NC Cases Challenging Partisan Gerrymandering

While the US Supreme Court has recognized that extreme gerrymandering by political parties for their own benefit is unconstitutional, it has not previously ruled on a test for partisan gerrymandering.   A new group of cases, including the Common Cause / League of Women Voters of North Carolina case, are challenging partisan gerrymandering as impermissible under the US Constitution.

  • Harris v. McCrory: In addition to the above racial gerrymandering case, there is a related Harris appeal at the Supreme Court that arises from objections that the new map (which was drawn by court order in the racial gerrymandering suit) merely replaced an unconstitutional racial gerrymander with an unconstitutional partisan gerrymander.  The US District Court denied the plaintiffs’ objections, ruling that the court could not “resolve this question based on the record before it,” and the plaintiffs appealed to the Supreme Court.
  • Common Cause v. Rucho and League of Women Voters v. Rucho: Common Cause v. Rucho was filed in US District Court in August 2016 and challenges North Carolina’s redrawn congressional map (adopted in 2016 after the Court struck down the earlier map) as an unconstitutional partisan gerrymander.  League of Women Voters v. Rucho was filed in September 2016 and also challenges the state’s remedial congressional map, claiming it is an unconstitutional partisan gerrymander.  The complaint argues that partisan gerrymandering is unconstitutional because it treats voters unequally, diluting the electoral influence of one party’s supporters in violation of the Equal Protection Clause.  These two consolidated cases are currently pending in US District Court of North Carolina.   A three-judge panel denied the state’s motion to dismiss the cases and set the start of a joint trial in the cases for June 26, 2017.

Voting Rights

NAACP v. North Carolina: The NCGA enacted  legislation in 2013 that  imposed a number of voting restrictions on North Carolina voters. This vote-restriction law (often referred to as the “monster” law) was struck down by the US Fourth Circuit Court, which held that the law was “enacted with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment and § 2 of the Voting Rights Act.”  The overturned vote-restriction law was enacted in 2013 after Section 5 of the Voting Rights Act  (a law to preserve voting rights in areas that had historically disenfranchised Black voters) was gutted in the Shelby County v. Holdre decision.   In its opinion overturning the law, the US District Court found that the law had “target[ed] African Americans with almost surgical precision.”

Shortly before he left office, former Governor McCrory filed a petition in the United States Supreme Court to appeal the lower court’s decision.   Governor Cooper and Attorney General Stein have now withdrawn the state’s request that the United States Supreme Court hear an appeal and reinstate the vote-restriction law.   However, despite its earlier argument that it was not a party to the case (in order to avoid a subpoena) the extremist-controlled NCGA has petitioned the US Supreme Court to let it join and continue the petition, and the governor and AG have replied with objections to the NCGA’s request.

 “SB4” – State Board of Elections /State Ethics Commission

During the 4th “Special Session” of 2016, the NCGA passed a bill that would, among other things, combine the State Board of Elections and the State Ethics Commission and give the NCGA significant control over the combined board.   There is some debate as to whether the 4th Special Session was properly called, but in the meantime Governor Cooper is challenged the constitutionality of this law in court and the combination of these two boards has been overturned by a Wake County Superior Court three-judge panel. The NC GOP will likely appeal.

* The Brennan Center lists Harris twice – once for the partisan gerrymandering and once for racial gerrymandering (procedural posture is different for each issue); in addition Common Cause and LWV cases are going to be heard jointly.

For more info:

Redistricting Glossary:

http://www.fairvote.org/redistricting#redistricting_glossary

Brennan Center for Justice:

http://www.brennancenter.org/blog/state-redistricting-litigation-january-2017-edition

Redistricting Law Blog:

http://redistricting.lls.edu
For my summaries on Covington and Harris and the story behind them, see https://hyperblogic.org/2017/02/13/how-many-lawsuits-does-it-take/

2 thoughts on “North Carolina: State of Litigation

  1. This is really helpful. To follow up, I’d like to see a reference to how this issue leads to HB2? I actually had a question about this today from a friend who has a gay child. I “know” but didn’t answer briefly and
    clearly.

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  2. With the NC-GOP’s continued refusal to repeal HB2, the rest of the world can be forgiven for believing that North Carolinians support purposeless hateful legislation. The truth, however, is that that North Carolina is an oligarchy disguised as a representative democracy.

    The tool that they use to create the illusion that they enjoy majority support is commonly known as gerrymandering. The NCGA designs its own districts. Using high-priced private consultants and sophisticated software, the NC GOP drew the districts to guarantee that their party will continue to hold a majority of seats. With gerrymandering, a party with less than a majority of support can control a majority of seats.

    With gerrymandered districts that ensure their reelection, almost half the NCGA ran unopposed in the last election. The GOP leadership of the NCGA has no incentive to repeal a law that is harming North Carolinians – they are personally immune to any consequences of their actions. They have rigged the game so that they will always win, no matter how much North Carolina looses.

    If we want North Carolina to stop being a “bathroom joke” then we must demand transparent and fair redistricting.

    You can see more in this article: https://extranewsfeed.com/gerrymanderings-paralyzing-effect-hb2-97f40acf78b9

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