by Michael Li, NC Newsline
May 3, 2023
In recent years, state courts have been rare bright spots in the fight against gerrymandering, with voters around the country successfully using state constitutions to challenge politically skewed voting maps drawn by both major parties. But growing momentum in state courts took a stumble last week with the deeply troubling decision by the North Carolina Supreme Court to abruptly abandon anti-gerrymandering precedents that it issued only last year, even though nothing other than the composition of the court had changed.
The reversal opens the door for congressional and legislative maps to be redrawn by the Republican-controlled legislature as early as this summer. With the state’s highest court making clear it will not intervene to police gerrymandering, North Carolina Republicans are expected to aggressively retool congressional and legislative maps to once again create massive and durable advantages for their party. (The North Carolina mapping process is especially suspectable to abuse because, unlike almost every other state, the governor lacks the ability to veto maps.)
The outcome is almost certain to be breathtaking in its brazenness, especially given how narrowly the U.S. House is currently divided. The court-drawn map used by North Carolina voters in 2022 was balanced and competitive, electing an equal number of Democrats and Republicans in last year’s midterms. It could be transformedinto one that reliably elects 11 Republicans and just 3 Democrats in every election for the rest of the decade no matter how well Democrats do — a skewed result wholly at odds with North Carolina’s purplish electoral politics.
New maps also could have a racially discriminatory dimension. Partisan affiliations in the Tar Heel State often fall along racial lines. When the legislature last attempted to gerrymander in 2021, a key part of maximizing Republicans’ advantage was reducing the share of Black voters in the congressional district of G.K. Butterfield, one of two Black members of the North Carolina delegation. The effect was to transform a district where Black voters had successfully and reliably formed a coalition with like-minded white voters and make it into a Republican-leaning one. While the court-drawn map ultimately restored the district, it was not before Butterfield retired — announcing his decision with a scathing video message calling out GOP lawmakers for discriminating against Black voters and “putting their party politics over the best interests of North Carolinians.”
Besides green-lighting the return of no-holds-barred gerrymandering, the decision is also disturbing for other reasons.
For one, courts aren’t supposed to “re-decide” cases they’ve already decided when nothing has changed other than the judges on the court. If North Carolina lawmakers thought the court misinterpreted or misapplied the state constitution, their remedy was to propose a clarifying amendment to the constitution for consideration by the voters. That’s something that can be done with ease in North Carolina. In fact, North Carolina lawmakers have proposed 149 amendments to the state constitution since 1868 and 42 just since 1970. To be sure, a “freedom to gerrymander” amendment probably would have trouble passing. A recent poll showed that nearly 9 in 10 North Carolinians oppose gerrymandering, including 89 percent of Trump voters.
The imminent return of gerrymandering to North Carolina also vividly highlights the damage to American democracy by not having federal limits on overly partisan line-drawing, either from the U.S. Supreme Court, which ruled that such claims are nonjusticiable in federal courts, or from Congress, which tried but failed to pass a ban on partisan gerrymandering in 2021.
The Supreme Court claimed this wouldn’t happen.
Back in 2019, when the Supreme Court ruled that partisan gerrymandering claims could not be brought in federal court, Chief Justice John Roberts assured Americans that “our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void” The problem simply was that voters harmed by gerrymandering had looked for a remedy in the wrong place. Federal courts might not be able to address gerrymandering, but as the chief justice explained, “The States . . . are actively addressing the issue on a number of fronts. . . . Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”
With North Carolina courts now joining the federal courts in stepping out of any role in policing gerrymandering, it is more urgent than ever that Congress act to protect fair elections. Leaving it wholly to states is not the answer.
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