Gerrymandering debate returns once more to the NC Supreme Court

Elections week continues at the state’s high court as justices weigh another appeal involving redistricting.

The North Carolina Supreme Court wrestled once again with the issues of redistricting and gerrymandering on Tuesday in a case in which Republican lawmakers contend they should be allowed to draw maps however they choose, regardless of whether they dilute the voting power of people casting a ballot in favor of Democrats.

“The court should defer to the General Assembly when it makes those policy decision unless they make obviously wrong decisions,” Phillip Strach, the lawyer representing the GOP, argued before the justices.

It is not the first time the state Supreme Court has heard the case. In February, the justices ordered the legislature to redraw congressional, state House, and state Senate districts that the majority ruled were unconstitutional because they impermissibly weakened votes for Democrats and favored Republican candidates. (The court’s three Republican justices disagreed and dissented.) The court’s opinion did not explicitly lay out how to draw the maps, but mentioned five different metrics used by redistricting experts, and said some combination of those would pass constitutional muster.

Later that month a panel of Superior Court judges replaced the Republican-drawn map for the state’s congressional districts with its own. The panel also decided that the state House and Senate plans that the legislature adopted met the constitutional standards set by the state Supreme Court.

Voters backed by the National Redistricting Foundation, who sued over the Republican-controlled gerrymandered districts, argued before the court that the legislature still didn’t draw the maps correctly, and maps should be thrown out.

Strach said the General Assembly “erred on the side of caution” in redrawing the maps, trying to both comply with the order and draw maps that would get enough votes from lawmakers to pass.

“The trial court should have deferred to those judgments that it made, which it did in part, but then inexplicably didn’t apply that to the congressional map,” Strach said. “Why? We don’t know because the trial court didn’t explain why it was rejecting one map over the other.”

Elisabeth Theodore, attorney for the plaintiffs, accused Republicans of asking the court to let them “cherry pick” which metrics they use when drawing maps and ignore all other evidence that their maps are discriminatory.

“It’s actually not that hard to pass a map that’s fair. It’s obvious that these maps weren’t. They passed on a party line vote,” Theodore said. “The problem isn’t that the General Assembly can’t not partisan gerrymander. It can. The problem is that its remedial maps — both the congressional and the Senate maps — were dramatically skewed to favor Republicans.”

Theodore asked the court to strike down the congressional and Senate maps, arguing that the Senate map yields unfair outcomes for Democrats.

“When the Republicans get 55% of the vote in the Senate map, they get 33 seats, which is a supermajority, and when the Democrats get 55% of the vote, they only get 28 seats,” she said.

Strach, meanwhile, said what was ostensibly “simple math” to comply with the metrics set forth by the Supreme Court turned out to be a lot more complicated. He said there were “thousands of thousands of ways” to calculate two specific metrics mentioned by the court, measures on which the court gave specific guidance on what thresholds must be hit to satisfy the requirements.

“This is no way to conduct constitutional analysis,” Strach said.

Hilary Klein, an attorney representing Common Cause, said it would have been easy for legislators to draw a map that would have scored better on “partisan metrics” without getting rid of neutral criteria for redistricting. Plus, Klein said, the court’s past ruling did not fix the destruction of “cross-over districts,” where some majority voters’ ballots cross over with racial minorities’ to elect the minority-preferred candidate. Klein said the maps intentionally destroyed two cross-over districts, in Senate District 4 and House District 1.

“When legislatures went back to draft remedial maps, where they had statewide discretion to bring those maps into partisan compliance, they purposely chose to redraw other areas of the state, while ensuring the destruction of functioning crossover districts in eastern North Carolina,” Klein said. “Legislators destroyed these crossover districts, even though preserving them would have helped bring the map into partisan compliance.”

Klein said that in order to “give full force and effect” to the Supreme Court’s February opinion, the justices must strike down both the remedial House and Senate maps.

“Justice requires it,” she said.

Strach concluded his rebuttal by asking the justices to dismiss the appeal on the congressional maps and affirm the trial court’s approval of the legislative plans. Otherwise, he warned, “This court is barreling into the political wilderness, where the legislative authority to redistrict will be transferred from the legislature to the courts.”

The U.S. Supreme Court is currently considering a related case (Moore v. Harper) in which Republican legislators argue that state courts shouldn’t even be allowed to assess the General Assembly’s decisions on congressional elections and rule that those actions are unconstitutional.

Tuesday’s arguments marked the second time this week that the state Supreme Court heard arguments on a case involving elections. On Monday the justices heard an appeal of a lower court decision from 2021 that struck down a state law requiring a photo ID to vote. Superior Court judges ruled in a 2-1 decision last year that the law unconstitutionally targeted African American voters and put a greater burden on them than their white counterparts.

Gerrymandering and voting rights were also the subject of debate at the U.S. Supreme Court on Tuesday, where justices heard arguments in Merrill v. Milligan, a case brought by civil rights groups challenging the congressional district map in Alabama. The Court is expected to hear arguments in Moore v. Harper late this fall or early in 2023.

[This story has been updated to clarify the relationship between the the case before the state Supreme Court (Harper v. Hall) and the case currently pending at the U.S. Supreme Court (Moore v. Harper).]