But activists say that trying to abolish lines drawn for partisan gain will probably be a lot harder elsewhere in the country, where conservative-leaning state courts are less receptive to such challenges.
The Supreme Court’s decision in June that partisan gerrymanders are beyond the reach of federal courts has opened the door to a patchwork of outcomes in different states that will hinge on the partisan tilt of their judiciaries and the fine print of their constitutions.
That ruling also negated decisions in lower federal courts that threw out maps in key swing states, including Michigan and Wisconsin — meaning those districts will remain in place for next year’s elections.
Activists fighting what they view as unfair drawing of district lines said they now must intensify their strategy of backing like-minded candidates for state legislatures, governors and even judicial seats to lay the groundwork for future court challenges that they think might not succeed today.
“We’re now going to have to go state by state to protect people’s voting rights,” said Eric H. Holder Jr., who served as attorney general in the Obama administration and has led Democratic-funded anti-gerrymandering efforts since 2017. “That’s not ideal.”
In North Carolina, a Democratic-majority panel of Superior Court judges moved quickly to order new maps after the National Redistricting Foundation, a Holder-affiliated group, challenged them in court in September.
In a preliminary ruling that has already prompted Republican leaders to begin drawing new districts, the judges wrote that the current map is an “extreme partisan gerrymander” that runs afoul of the state constitution.
Among the evidence offered in the suit is that Republicans admitted that they drew a partisan gerrymander, as well as the fact that they currently hold 10 of the state’s 13 districts — even though, in the 2018 elections, roughly the same number of voters chose Democrats as chose Republicans.
Holder said he hopes to upend congressional and legislative maps in Texas, Georgia and Ohio, among others, that his group views as drawn along partisan lines.
But all will be more difficult targets because both judiciaries and legislatures in those states are GOP-controlled, he and others said.
“It’s going to be few and far between where the state courts are going to be willing to seriously review maps,” said Paul Smith, litigation chief at the nonpartisan political watchdog Campaign Legal Center. “State courts are elected and they have a partisan tilt, and it tends to be the same as the legislature in most places. And now they have a road map from the Supreme Court on how to duck the issue.”
In a 5-to-4 decision written by Chief Justice John G. Roberts Jr., the Supreme Court ruled that partisan gerrymandering is beyond the reach of the federal courts because the Constitution does not expressly empower the courts on the topic, and because of what he described as the difficulty of establishing a legal standard to limit the practice. Roberts did not defend maps drawn along partisan lines or say they were constitutional.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” he wrote. “But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary.”
The decision confounded redistricting activists, who adamantly disagreed with that assessment.
“That’s what the United States Supreme Court is supposed to do — look at those things that have a negative impact on democracy, and then police them,” Holder said. “The court has a history of doing that.”
So far, a few state courts have taken on the issue. In 2018, the Pennsylvania Supreme Court, composed of five Democrats and two Republicans, took action similar to what the North Carolina court did this year, striking down a congressional map drawn by a GOP-controlled legislature in a separate lawsuit filed by the nonpartisan Public Interest Law Center.
It is one of only two recent examples of states tossing partisan-drawn congressional maps; the other is Florida, where the state Supreme Court tossed districts in 2015 after the passage of a state constitutional amendment banning partisan maps.
But activists said they see little chance of challenging other maps that they think were unfairly drawn along partisan lines before the next elections — including those in Michigan, Wisconsin and Ohio, where lower federal court rulings against partisan gerrymandering were nullified by the Supreme Court decision in June.
“I think we’re probably done with litigation that attempts to change the 2020 map,” said Justin Levitt, a professor of constitutional law at Loyola Law School in Los Angeles.
In both North Carolina and Pennsylvania, Republicans criticized judicial intervention in line-drawing as an unconstitutional power grab. “There’s no such thing as a partisan gerrymander,” said Pennsylvania House Speaker Mike Turzai, a defendant in the case there. “There’s no provision in the U.S. or state Constitution that makes use of that phrase.”
North Carolina state Sen. Ralph Hise, who chairs the Senate Committee on Redistricting and Elections, said in a statement that giving line-drawing power to judges doesn’t remove partisanship from the process. Instead, it simply transfers it.
“State judicial elections will be as important in determining which party controls Congress as the actual elections for Congress,” Hise predicted. “It’s a dangerous place to be, and you’re likely to see massive amounts of money spent on state judicial races in the next decade.”
Some of that has already happened; Holder has supported Democratic judicial candidates, including newly elected North Carolina Supreme Court Justice Anita Earls.
He has also supported recent efforts to install nonpartisan districting officers or commissions in Colorado, Michigan, Missouri and Utah in time for 2021, when new census data will trigger the reapportionment of congressional seats across the country.
Holder and other advocates for redistricting reform argue that they are not pushing for Democratic power to draw unfair maps. Instead, he and others are advocating for nonpartisan line-drawing that preserves communities of interest and municipal boundaries, keeps districts as compact as possible and makes it possible for both parties to elect a proportional number of representatives to reflect the overall population.
In North Carolina, advocacy groups concluded that they had a shot at tossing out the congressional map altogether because of the Democratic tilt of its judiciary and what they viewed as the overwhelming evidence of a partisan gerrymander.
In a practice known as “cracking,” the cities of Greensboro, Fayetteville and Asheville are cut in half, in each case producing two Republican-leaning districts with diluted Democratic populations. The borders split Asheville so dramatically that students on different sides of the same University of North Carolina dormitory live in different congressional districts.
And in another practice called “packing” that ensured surrounding districts favor Republicans, the 1st Congressional District encompasses the largely rural and heavily African American northeastern corner of the state — but includes a hooklike appendage reaching westward to grab the heavily black population of Durham.
Republican lawmakers have acknowledged that they drew the current map for maximum political advantage. It was drawn in 2016, after a federal court had ruled that the previous map was an illegal racial gerrymander — a decision the Supreme Court upheld, unlike its ruling in the partisan case.
Rep. David Lewis, one of the redistricting committee chairs, declared at the time that the new maps would preserve Republican control of 10 of the state’s 13 congressional districts — using election results rather than racial data, as had been done with the previous map.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats,” Lewis said at the time, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
Democrats said that if they were not able to challenge the maps along partisan lines, the state’s voters would be locked into districts that did not reflect North Carolina’s current political makeup.
“More voters voted for Democrats than voted for Republicans last year,” said Morgan Jackson, a political adviser to Democratic Gov. Roy Cooper. “Yet Republicans won 10 of 13 seats. We found that you could not break the majority the way the maps had been drawn. There was a wall that you just could not get across. And that wall is partisan gerrymandering.”
Advocates also think the Supreme Court’s ruling on partisan gerrymandering allows states to get away with de facto racial gerrymanders — a practice the court barred in 2017.
In North Carolina, Republicans said that after that decision, they only relied on partisan data, not racial data, in redrawing the state’s congressional map.
But as part of that process, they sliced through black communities in Greensboro, Charlotte, Fayetteville and elsewhere to dilute the power of Democratic voters. One boundary line split the campus of the country’s largest historically black university.
That means when Asya Bryant, a senior at North Carolina A&T State University in Greensboro, walks the three blocks from the student center to Williams dining hall, she leaves one Republican-held congressional district and enters another.
Because African American voters favor Democrats so heavily, using partisan data to draw congressional lines can produce virtually the same results as using racial data, a Washington Post analysis of North Carolina’s congressional map found.
How Greensboro was gerrymandered
The three cities of Greensboro, Winston-Salem and High Point have almost enough people for their own congressional seat. Together they are half nonwhite, and have voted Democratic by a 2-to-1 margin.
North Carolina’s congressional map divided the cities between three districts that all lean Republican by including outlying areas of mostly white and heavily Republican voters. A congressional district that included two of the three cities would be competitive for Democrats.
Simply uniting the entire N.C. A&T State University area, now lopped off from Greensboro, into the same district as the rest of the city would create a Democratic district, The Post analysis shows.
Experts say the phenomenon extends to other Southern states with large black populations.
“If you are allowed to do partisan gerrymandering, why would you draw the map based on race when you can achieve substantially the same outcome using partisanship?” asked Stanton Jones, a lawyer with the D.C.-based firm Arnold Porter who is helping challenge the congressional map in state court.
Bryant and other activists say the congressional boundaries drawn along partisan lines effectively curtailed the influence of African American voters, too — and she thinks it’s intentional.
“Right now, young people, especially African Americans, want to vote more than ever,” Bryant said. “They see that. They see people speaking their minds, protesting, and it’s something they’re not used to and not comfortable with. So they are doing everything in their power to stop it.”
In addition to North Carolina, Southern states with large black populations such as Georgia and Mississippi have maps based on partisan data that effectively divide communities based on race, advocates say.
Kristen Clarke, the head of the Lawyers Committee for Civil Rights Under Law, said her organization lost a suit over racial gerrymandering in Georgia because “proving racial gerrymandering is hard to do.” The Supreme Court’s ruling, she added, will make it easier for states to get away with such practices.
The matter is not settled in North Carolina. On Tuesday, lawmakers are expected to produce new maps in response to a preliminary injunction issued by a three-judge panel on Oct. 28 blocking the use of the current congressional map in the 2020 election. It’s too soon to know whether the plaintiffs — or the judges — will accept the lines they draw.
How Democrats and nonwhite voters were “packed” into districts
In two parts of North Carolina, Democratic voters were packed into heavily Democratic districts that ensured nearby districts would remain narrowly Republican.
Durham and Raleigh
Together, the urban cores of Raleigh, Durham and Chapel Hill, along with the state’s rural northeast, hold enough voters to form the base for three congressional districts that would be competitive for nonwhites and Democrats. The present map limits their influence by packing them into two heavily Democratic districts. Republican suburbs are gathered in their own safe districts.
The 9th Congressional District is a sausage-shaped area that starts in Charlotte, where it pulls in the largely white and Republican voters on the city’s south side. They cement the district’s Republican lean, counterbalancing the nonwhite and Democratic areas in the eastern end of the 9th District near Fayetteville, more than 100 miles away.
The rest of Charlotte, with a population of largely nonwhite and Democratic voters, is confined to the 12th District.
Sources: Election results, precinct maps and voter registration statistics from the N.C. State Board of Elections; congressional district map from the N.C. General Assembly. Map shading for voting is based on votes for Republican and Democratic candidates in 2016 general election races for president, U.S. senator, governor, lieutenant governor and state attorney general.