This will probably go to the Supreme Court next. The best-case scenario for Democrats is that it gets there while the court has a vacant seat, meaning they could get a divided court to basically uphold Monday’s ruling. And if new, less partisan maps are drawn in the next few months, Democrats could expect to win anywhere between one to three congressional seats in North Carolina, with several more Republican-dominated ones becoming more competitive.
Political scientists say North Carolina is one of the most aggressively gerrymandering states in the country. It has voted about evenly in the past three presidential elections, and yet Republicans control 10 of the 13 congressional districts and have a supermajority in the state legislature. Republicans who drew those heavily pro-GOP districts after the 2010 Census have openly cited the fact they wanted them to be friendlier to Republicans. As The Post’s Robert Barnes reports:
"I think electing Republicans is better than electing Democrats,” said Rep. David Lewis, a Republican member of the North Carolina General Assembly, addressing fellow legislators when they passed the plan in 2016. “So I drew this map to help foster what I think is better for the country.”Robert Barnes, The Washington Post
A couple of congressional seats in one state flipping to Democrats doesn’t sound like a major deal, but they could go a long way when you consider that the battle for the House majority could be decided by just that. Democrats need to net a total of 23 seats to take back the majority, and while most election analysts think they have a good chance to win those, it could be by the skin of their teeth.
That’s when you include the break Democrats got in Pennsylvania earlier this year in a separate gerrymandering case. The state’s Supreme Court threw out the entire GOP-drawn congressional map there in January for the same reason North Carolina’s is now in jeopardy: The judges determined it was unconstitutional to draw districts to favor one party’s voters over another. It ordered all 18 districts redrawn in a matter of weeks, and the new map could give Democrats the chance to pick up as many as half a dozen seats in November.
All of these breaks for Democrats in partisan gerrymandering cases are relatively new. Until recently the courts avoided ruling on whether drawing districts for partisan gain was unconstitutional. (By contrast, drawing districts deemed to lump people of a certain race together has been a clear no-no for a while.)
But over the past year, state and lower federal courts have started to knock down maps drawn to help one party over another in Maryland, Wisconsin, North Carolina and Pennsylvania. A couple of other cases in Michigan and Ohio could come soon.
Both parties have been proven to gerrymander. But lately Republicans have been on the receiving end of judiciary blows to their maps. That’s largely because Republicans had such a successful 2010 election, the one right before lawmakers in most states got the pens to draw new congressional and state legislative districts in response to the 2010 Census.
But despite the wave of court opinions knocking down partisan gerrymandering, this North Carolina case might paradoxically prove that it’s here to stay. The Supreme Court has been extremely reluctant to chime in on what’s too partisan. The whole separation-of-powers thing comes into play, plus the fact that partisanship isn’t objectively measurable the way someone’s race is.
That explains why in June, the Supreme Court declined to weigh in on two partisan gerrymandering cases in Wisconsin and Maryland that could have given Democrats a road map to knock down GOP-drawn maps across the country. It was one of the only breaks for Republicans on partisan gerrymandering this election cycle.
The justices could blunt Democrats' momentum in North Carolina, too. Gerrymandering experts expect this to be the flagship case for partisan gerrymandering, in part because of how blatant politicians' intentions were to favor their voters. A 5-to-4 conservative court (depending when the Senate confirms President Trump’s nominee, Brett M. Kavanaugh) could side with North Carolina Republicans and reverse the decision to throw out the congressional districts.
People watching the case think Kavanaugh will probably be on the court in time to decide this.
Long story short: The wind is at Democrats' backs when it comes to partisan gerrymandering cases. It’s already made a difference in one key swing state, and Democrats are now in a race for time to add another state to the list. But it could all get blunted by a conservative Supreme Court.