These have not been good times for Democrats wanting a fair shot at representation. The Supreme Court’s 2012 decision to eviscerate the Voting Rights Act was the beginning of a series of rulings rubber-stamping just about every tactic the Republican Party has come up with in its comprehensive war on voting rights, which includes everything from voter ID laws to voter purges to making registering voters all but illegal to partisan gerrymandering.
So when Democrats get any kind of victory in this ongoing battle, as they just did on Tuesday, it’s a remarkable development. And it shows one path for them to overcome a Supreme Court that is determined to make sure Republicans can continue to rig elections in their favor:
A North Carolina court ruled Tuesday that the state’s legislative districts are unconstitutional, in a unanimous decision that won praise from voting-rights advocates and opens a new front in the national battle over partisan gerrymanders.
The three superior court judges in Wake County set a deadline of Sept. 17 by which North Carolina’s Republican-led General Assembly must submit redrawn state House and Senate district maps to be reviewed by a court-appointed referee.
In their ruling, the judges stated that the plaintiffs had proved the effect of the “partisan” maps drawn by the state legislature was that, “in all but the most unusual election scenarios, the Republican party will control a majority of both chambers of the General Assembly.”
Proving the effect of partisan maps, it should be noted, is precisely what the Supreme Court said was impossible to do when it ruled two months ago that the federal courts have no business even trying to judge whether any gerrymander is too partisan, no matter how much it discriminates against voters from one party.
But the North Carolina court said that the brutally gerrymandered maps Republicans had drawn were so discriminatory that they violated multiple provisions of the state’s constitution. And they had a smoking gun: hard drives belonging to Thomas Hofeller, who until his recent death was the GOP’s premier gerrymandering expert.
Hofeller’s documents (which were given to Common Cause, the litigant in the case, by his estranged daughter) showed precisely how he crafted maps for North Carolina Republicans in order to ensure that it would be almost impossible for Democrats to gain control of the state legislature no matter how well they did in elections.
Interestingly enough, North Carolina Republicans said they will not be appealing this decision, probably because they know they’d lose in the state supreme court, which has a Democratic majority. Since state supreme court rulings can’t be reviewed by the Supreme Court if they’re based on a state constitution, that’s where this question will end.
This isn’t the first such victory Democrats have had: In 2018, the Pennsylvania Supreme Court ruled that a Republican gerrymander of congressional maps violated the state’s constitution, and after the court drew a non-partisan map, Democrats went from controlling just five of the state’s 18 congressional seats to winning nine of the 18, a much more accurate reflection of the state’s voters.
So we should see more suits like these. Given the Supreme Court’s wholehearted endorsement of the Republican war on voting, lawsuits based on state constitutions provide one of the only means for Democrats to guarantee voting rights and keep elections fair.
Every state constitution provides some guarantee of the right to vote, and 26 constitutions require that the elections must be “free,” “free and open,” or “free and equal.” The North Carolina court said that the Republican gerrymander violated that provision of the state’s constitution.
“Elections are not free when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power,” the judges wrote.
The bad news is that where state supreme courts are controlled by Republicans, efforts to guarantee that elections are actually free and fair will likely fail more often than not. And of course, winning control of supreme courts that will validate voter suppression is a key component of Republicans’ strategy, one they have deployed with great success.
Which is why Democrats are left in a familiar position: To get a fair shake, they have to work twice as hard. With the game rigged against them, they need enormous mobilization and a huge advantage in public opinion to have any hope of taking power so they can unrig the game.
Opportunities don’t come that often to overcome GOP vote suppression and win enough seats, whether in Congress or on the state level, to actually take power. It happened in 2018, and it might happen again in 2020. But if Democrats can’t have another blockbuster election, Republicans will use whatever control they retain to make sure that their power is entrenched for another decade. No matter what the public might want.