The Washington PostDemocracy Dies in Darkness

North Carolina Republicans’ long track record of unconstitutional laws

Protesters stand in front of the Supreme Court while the justices hear arguments on gerrymandering Oct. 3, 2017, in Washington. (Bill O'Leary/The Washington Post)

This week a panel of federal judges ruled that North Carolina Republicans unconstitutionally gerrymandered the state’s congressional districts to disadvantage Democrats, the latest move in a legal saga going back to 2011.

Gerrymandering is the process by which legislators draw voting districts that give their own party a political advantage. The North Carolina map, for instance, allowed Republicans to take 10 out of the state’s 13 House seats in 2016 despite winning 53 percent of the statewide popular vote.

The latest North Carolina legal decision lays out precisely why this is a problem: When maps are gerrymandered, the government no longer reflects the will of the voters. “We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan — and, therefore, constitutional representation in Congress — for six years and three election cycles,” wrote Judge James A. Wynn Jr. of the U.S. Court of Appeals for the 4th Circuit in his decision.

Wynn’s decision is also sharply critical of the Republican-controlled North Carolina General Assembly, which has been unapologetic about its desire to tilt the playing field in favor of Republicans. “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” as state Rep. David Lewis (R) put it in 2016.

The ruling questions the General Assembly’s “commitment to enacting constitutionally compliant, non-discriminatory election laws,” given the stunning number of election-related bills passed by the legislative body that have subsequently been struck down as unconstitutional.

In a lengthy footnote, Wynn’s decision lists the recent rulings overturning the General Assembly’s election-related legislation. Taken together, they illustrate what happens when a legislature protected by a gerrymander thinks it can act with impunity. We’ve listed those rulings below.

  • In 2016, a federal court ruled that the General Assembly “unjustifiably, and therefore unconstitutionally, relied on race in drawing lines” for state legislative districts in 2011, which Wynn characterizes as “among the largest racial gerrymanders ever confronted by a federal court.”
  • The General Assembly subsequently drew new legislative districts, which were themselves racial gerrymanders, according to the same federal court.
  • In 2013, the General Assembly enacted a strict voter-ID law that also ended same-day voter registration, shortened the early voting period and ended the practice of out-of-precinct voting. A federal court found that the purpose of the bill wasn’t to prevent voter fraud but, rather, to disenfranchise black voters “with almost surgical precision.” It was struck down.
  • In 2013 and 2015, the General Assembly redrew district maps for Wake County’s Board of Education and Board of Commissioners shortly after Democrats won control over those boards. A federal court ruled that the General Assembly’s intent in drawing the maps was to reestablish Republican control, and the districts were overturned.
  • In 2015, the General Assembly passed a bill to change how voters in the city of Greensboro elected city council members. A federal court ruled that the legislators drew the districts “with materially unequal populations in an attempt to maximize success for Republican candidates,” and overturned the bill.
  • In December 2016, the General Assembly passed several laws limiting the newly elected Democratic governor’s ability to make political appointments and changing the structure of state and county election boards. In 2017 a panel of state judges ruled that some of the appointment limitations and the changes to election boards were unconstitutional.
  • In June, the General Assembly passed a bill that would retroactively remove Constitution Party candidates from the November ballot. A U.S. district judge overturned the bill for violating the candidates' free speech rights.
  • In 2018, the General Assembly is attempting to put a number of state constitutional amendments on the November ballot. Earlier this month, a panel of three state judges removed two of those amendments from the ballot after finding that their wording “misleads and does not sufficiently inform the voters” of their substance. Both of those amendments would have shifted power from the Democratic governor to Republican lawmakers.

In Wynn’s view, looming behind all of these overturned laws is the original gerrymander, passed by Republicans in 2011, that virtually guaranteed their hold on power for the coming decade. “As James Madison warned,” Wynn writes, “a legislature that is itself insulated by virtue of an invidious gerrymander can enact additional legislation to restrict voting rights and thereby further cement its unjustified control of the organs of both state and federal government.”