WE SYMPATHIZE with the federal three-judge panel that on Monday repudiated North Carolina’s outrageously gerrymandered congressional district map. But the judges will have to move with extreme care over the coming weeks to avoid mass confusion before Election Day.
In a near-identical reprise of a previous decision, the judges found that North Carolina’s legislature drew the state’s congressional districts with impermissible partisan intent. Declaring that “the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others,” the court found state lawmakers violated no fewer than three constitutional provisions: Article I, which “preserves inviolate the right of ‘the People’ to elect their Representatives;” the First Amendment, which “prohibits election regulations that ‘restrict the speech of some elements of our society in order to enhance the relative voice of others;’ ” and the equal protection clause, which “embodies the foundational constitutional principle that the State must govern ‘impartially.’ ”
One strong objection to this argument — that gerrymandering has occurred since the country’s founding and therefore cannot be unconstitutional — fails to account for the fact that the practice has produced some unusually extreme maps in recent years. North Carolina, a state that votes about evenly for Republicans and Democrats, elected only three Democrats in its 13 districts in 2016. If North Carolina’s wholly unjustifiable gerrymander is legal, then practically any super-partisan redistricting scheme would be.
The severe harm of extreme gerrymandering to fundamental constitutional principles demands judges stop hiding behind the excuse that it is impossible for them to sort out permissible gerrymanders from impermissible ones. As partisan state lawmakers are using increasingly sophisticated technology to pack voters so that maps produce wildly imbalanced results, the courts must strike down the most egregious. Judges may argue about precisely where to draw the line between legal and illegal gerrymanders, but there should be no debate that North Carolina far surpassed it.
The trouble is how — or, really, when — to address North Carolina’s absurd map. The judicial panel is seeking immediate changes to the state’s map. “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,” the judges noted. Yet the state’s primaries have already occurred, and it is only a bit more than two months before Election Day. The judges suggest that elections could occur without primaries, as North Carolina allows for other offices, which would upend the way voters expect to choose representatives and threaten to deprive parties of their say in narrowing the field of candidates. The judges also raised the possibility of using the November vote to conduct makeup primaries, with the general election to be held at a later date, before the next Congress sits. This is a recipe for a low-turnout general election vote, which raises its own prospect for skewed results.
Briefs are due to the judges on Friday about options for fixing North Carolina’s map in a way that “would not unduly interfere with the State’s election machinery or confuse voters.” They must meet their own standard.