The North Carolina Supreme Court Signs Off on a Political Gerrymander

We’ve talked about the North Carolina gerrymandering case, also called the independent state legislature theory case, that the Supreme Court is considering this term and how the Court’s continued jurisdiction was compromised when the North Carolina Supreme Court suddenly reopened proceedings. The U.S. Supreme Court has jurisdiction to hear only final decisions from lower courts in a case like this. So after the North Carolina Supreme Court decided to rehear the case, they asked the parties to brief whether they could still decide it. No ruling from the U.S. Supreme Court yet, but today the North Carolina court entered a decision in its reopened proceedings.

Their ruling was no surprise, in the sense that there was no reason to reopen the case unless they were going to reverse the earlier decision. Let me set the scene for you.

In a 2019 U.S. Supreme Court case, Rucho v. Common Cause, the Court ruled it would not consider whether the election maps drawn by a state were an illegal political gerrymander. It held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. After Rucho, federal courts can only consider whether electoral maps are an illegal racial gerrymander.

But even though the Supreme Court has ruled that federal law doesn’t reach political gerrymanders, some states’ constitutions prohibit them. In those states, challenges to partisan gerrymanders can still proceed. That happened in Alaska, where last week the state Supreme Court ruled that a partisan gerrymander violated the state constitution. And in North Carolina.

Today the North Carolina court reversed its earlier ruling that new maps drawn after the 2020 census violated the state’s constitution because they amounted to a political gerrymander. What led the court to this new result?The law didn’t change. The facts didn’t change. Only the political makeup of North Carolina’s Supreme Court changed, and now they’ve authorized an extreme partisan gerrymander that previously violated the state’s constitution.

If Republicans in North Carolina don’t like this provision in their state constitution, there’s a mechanism for changing it: amend the state constitution. But changing rulings without regard for precedent just because the personalities that make up a court have changed is contrary to the rule of law. And it damages public confidence in the rule of law.

Former Attorney General Eric Holder issued a statement, setting forth clearly what’s at stake. He points out that as bad as what happened in North Carolina is, it’s not just North Carolina. There is the larger question of whether Republicans, concerned that their ability to win fair elections in much of the country is a thing of the past, will engage in political gamesmanship to hold onto power:

“This shameful, delegitimizing decision to allow the unjust, blatant manipulation of North Carolina’s voting districts was not a function of legal principle, it was a function of political personnel and partisan opportunism. Neither the map nor the law have changed since last year’s landmark rulings—only the makeup of the majority of the North Carolina Supreme Court has changed. History will not be kind to this court’s majority, which will now forever be stained for irreparably harming the legitimacy and reputation of North Carolina’s highest tribunal. The eyes of the nation will now turn to the North Carolina legislature to see what further harm Republicans will do to undermine democracy in the state. 

“Make no mistake, this moment is the result of a concerted effort by too many in the Republican Party to bend—even break—the rules of our democracy in order to unfairly gain and then hold onto power. They fear they can’t win in a fair electoral system. Republicans have said themselves that state supreme court elections are ‘the next big political frontier.’ By planting partisan ideologues instead of fair-minded justices on the courts, they are weakening the independence of state judicial branches across the country in order to roll back rights and force unpopular policies—including abortion and democracy destruction—onto the people. We cannot allow them to succeed.”

Trump was the epitome of an approach that valued winning at all costs. But just as Republicans had been employing fake narratives about voting fraud that Trump picked up, albeit not to the extremes he went to, to justify vote-suppressing measures, even in Trump’s absence, other efforts to manipulate elections are still afoot. Finding ways to legitimize gerrymanders that prevent people from electing the representatives they want because of the way the districts they live in are drawn is one of them. The North Carolina court today also gave two more wins to anti-voting measures, permitting a restrictive voter ID act to go into effect and limiting the restoration of voting right to people who have finished serving a sentence after a criminal conviction.

The question to ask is, what are these politicians afraid of? The answer, obviously, is voters. Because they know they can’t win a fair race.

We’re in this together,

Joyce