When the Supreme Court ruled in June that partisan gerrymandering cannot be challenged in federal courts, it was a huge blow to Democrats, who are challenging electoral maps drawn by Republican state legislatures across the country. Almost all their court cases evaporated with that decision.
But on Tuesday, Democrats had a reason for optimism. A state court in North Carolina ruled that the Republican-drawn state maps were unconstitutionally partisan — meaning they were drawn to ensure that Republicans can win them — and need to be redrawn. Republicans, worn down from years of court battles, said they would not appeal the decision. That means Democrats will almost certainly pick up seats in North Carolina’s state legislature.
It was North Carolina’s federal congressional maps that the Supreme Court used to decide, in a 5-to-4 decision, that there is no place for federal courts to rule on partisan gerrymandering. And it was North Carolina’s state legislative districts that just got knocked down.
This is a stunning turnaround in a short time. It is not immediately clear where redistricting advocates can repeat this effort, since state courts vary by, well, state. But this decision carries with it some soft power that could at least blunt other legislatures’ efforts to gerrymander their party into power.
“Other state courts might feel strengthened in the view that state courts can and should take on this issue,” Richard H. Pildes, a law professor and redistricting expert at New York University, said in an email to The Fix, “and they now have a 300-plus page road map for how to do it.” He notes that the three-judge panel that threw out Republicans’ maps in North Carolina was made up of one Democrat, one independent and one Republican.
Courts, including the Supreme Court, have said it is unconstitutional to use voters’ race to draw maps. But in recent years, the notion that it is wrong to use voters’ partisanship has been building steam, too, until it hit a wall with the Supreme Court.
Even if state courts elsewhere do not knock down maps, they could pose enough of a threat for legislatures to be more cautious about the most aggressive gerrymandering, Pildes said.
The Democratic Legislative Campaign Committee noted in a news release that North Carolina Republicans have lost nearly a dozen lawsuits related to redistricting over the past six years. In other words: It has been a long slog for the North Carolina Republicans who drew these maps to keep themselves in power in the first place. Was it really worth it? Maybe not, if we read between the lines of Republicans’ response. They are not going to appeal this to North Carolina’s Supreme Court.
“We disagree with the court’s ruling as it contradicts the Constitution and binding legal precedent,” North Carolina state Senate leader Phil Berger (R) said in a statement. “But we intend to respect the court’s decision and finally put this divisive battle behind us. Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on.”
North Carolina has been one of the most gerrymandered states in the nation, both in congressional districts and state legislative ones. Democratic state legislators won a majority of the popular vote in 2018 but Republicans held control of both chambers.
“One of the problems with the North Carolina gerrymander was even with a high turnout, it wasn’t possible for North Carolinians to produce different outcomes even if they wanted it,” Allison Riggs with the Southern Coalition for Social Justice, which argued the North Carolina redistricting case at the Supreme Court, told The Fix in June.
The next redistricting season begins in 2021, after new population data from the 2020 Census comes out. That means state legislative elections beginning this year and going through 2020 will put lawmakers in power to draw the maps in most states. (Both parties gerrymander, but Republicans control more state legislatures than Democrats, so they have been able to redraw more districts in their favor over the past decade.)
Democrats are racing to pick up as many as eight to 10 chambers to add to the eight they flipped from Republicans in the 2018 election cycle. But Democrats are at such a deficit of power in state legislatures that they could be locked out of power in some battleground states — Florida, Ohio, Wisconsin — no matter how successful a 2020 election they have.
Before Tuesday, though, they were not sure they had any other option in the gerrymandering battle other than to win elections.