Supreme Court: No Word on NC Gerrymandering Cases. Still.

Breaking News:

In today’s orders, the Supreme Court of the United States said NOTHING about North Carolina gerrymandering cases, including making NO announcements about 1) its ruling on the racially gerrymandered US Congressional Districts, OR 2) on whether or not it will hear the appeal of the lower court’s order to redraw gerrymandered North Carolina State House and State Senate Districts.

Currently, North Carolina US Congressional Districts, NC State House districts, and NC State Senate districts are all being challenged all the way up to the Supreme Court on both racial gerrymandering and political gerrymandering grounds.   NC has more pending federal redistricting cases than any other state. Almost half of the redistricting cases in the Country and the federal court system are North Carolina cases. We have 5 or 6 (depending how you count) – they are listed below.[i]

If the Supreme Court eventually shakes off its drowsy disregard for democracy, and actually decides to give a $%^& about North Carolina – it will not be the end of the story.

 Even if every court case goes our way, it will still be up to the North Carolina General Assembly to interpret and apply the Supreme Court decisions. Under current law, even if the NCGA has to re-draw the maps, they may still draw them more or less however they want, so long as the maps comply with the minimal standard set by the US Constitution. They are not required to be impartial or evenhanded.

The NCGA has learned that even if they get it wrong, it is unlikely that anything will happen for many years. We have a state legislature elected in districts that a US Court of Appeals held to be unconstitutional. We have had these gerrymandered maps since 2011 – and we are still living under them.

Stuff You Oughta Know:

North Carolina is one of a handful of states in which the state legislature can do almost whatever it wants, and the governor cannot veto the election district maps. NC does not have any sort of independent commission that signs off on the district maps, as some states do.

The primary governing law is Art. II of the NC State Constitution, which gives the NCGA the authority to draw its own districts for NC House and NC Senate with only the barest of criteria.

In order to amend NC State Constitution, we need 3/5 of the NC House and 3/5 of the NC Senate to vote in favor for the constitutional amendment and then it goes on the ballot for ratification by the voters.  Even if the perfect redistricting bill fell from heaven into our laps, it would not matter if the NCGA would not vote for it – we are going to have to figure out how to work together.

To get fair voting districts, North Carolina voters must demand it.

North Carolina voters must play an active role in redistricting reform if we are to have fair maps in North Carolina. The only path for redistricting reform goes through the North Carolina General Assembly – which means NC voters must demand fair districts.

What can you do TODAY?

We are going to have to figure out a way to work together on this – consider starting a dialogue with your representatives.

Currently, there are two redistricting bills in the NCGA that are exempted from the “cross-over” requirement because they involve amending the NC state Constitution (listed below). Both bills have some good qualities, one was sponsored by a Republican and one was sponsored by a Democrat.  You could call your representatives in the NCGA and ask them to support redistricting reform based on impartial criteria that excludes use of partisan data, and a transparent process.

You could ask if they would be willing to support one of these bills. If they do not support either of these, ask them what criteria and process they would want to see in a redistricting bill in order to support it.  You can tell them why you support fair voting districts.


 NC Redistricting (gerrymandering) Cases

LAST UPDATED MAY 1 2017

  • 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. A decision by the high court on whether to hear the state’s appeal is expected before the end of June.
  • Harris v. McCrory (now Harris v Cooper): 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 and legislative maps. 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.
  • Harris v. McCrory (now Harris v Cooper): 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: Filed in US District Court in August, this case 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: This lawsuit was filed in September 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.

 Both the Common Cause and LWV cases are currently pending in the Middle District of North Carolina with a joint trial expected June 26, 2017

[i] Brennan Center April 2017 State of Redistricting Cases at http://www.brennancenter.org/blog/state-redistricting-litigation-april-2017-edition

Want to know about Racial gerrymandering vs. partisan gerrymandering?

NC voting districts are being challenged on the basis of both racial gerrymandering and partisan gerrymandering.

Racial gerrymandering and partisan gerrymandering have historically been treated differently by the courts – but the function of each of them is essentially the same: they are both tools used by the politicians in power to keep their power and to dilute the power of other groups of people. The politicians drawing the maps use both racial gerrymandering and partisan gerrymandering and order to consolidate the power of their own group and to dilute the power of the people not drawing the maps.

Historically, the Supreme Court has not wanted to interfere with issues that it deems to be political issues so the Supreme Court has not yet ever ruled that deliberate partisan gerrymandering is necessarily unconstitutional (although it has suggested in opinions that extreme partisan gerrymandering is unconstitutional, it has never ruled on a standard).   This may be changing – 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.

In light of these NC cases, it is worth noting the Wisconsin partisan gerrymandering case, Whitford v. Gill, which has been appealed to SCOTUS.  In Whitford, a three judge panel ruled that Wisconsin’s districts were unconstitutional based because of PARTISAN gerrymandering, stating the “First Amendment and the Equal Protection Clause protect a citizen against state discrimination as to the weight of his or her vote when that discrimination is based on the political preferences of the voter.”

Want to know even more? Check out my Redistricting Reference Section for links to lots of groovy info.

*DISCLAIMER: Nothing contained herein should be construed as legal advice.  Not to be used as a personal floatation device.  Use at your own risk.  May contain nuts.  Do not leave children unattended with this blog post – or anything that references the Supreme Court, really.  And, NO, I never said that its OK to wear “double denim” nowadays.  

 May 8, 2017: Aylett Colston

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