Anti-gerrymandering: North Carolina Supreme Court extends a dangerous idea we need Congress to fix.

May 5, 2023
Kevin Johnson
From ERN Newsletter

Since 2018 ERN has been part of the fight to end gerrymandering. We’ve helped lead successful reform legislation in New Mexico, helped pass constitutional amendments in Missouri and Utah, and published unique research and commentary. This work fits our broader goal of reducing political party control over elections and leverages our understanding of better practices at use in other democracies.

ERN has a very talented anti-gerrymandering team, led on the very complicated legal side by Senior Counsel Mike Parsons. Mike has published extensively on redistricting issues, represented amici in key cases such as Rucho v. Common Cause and helped craft state and federal anti-gerrymandering legislation, notably including some provisions incorporated into the Freedom to Vote Act (FTVA), one of the most significant Congressional attempts to rein in gerrymandering nationally.

The context for mentioning Mike and the FTVA is a North Carolina decision last week that reiterates the importance of a Congressional role in redistricting reform.

On April 28, the North Carolina Supreme Court ruled in Harper v Hall that it cannot consider partisan gerrymandering claims under the state constitution. That decision, by a new Republican majority on the Court, overturned a decision issued just last year by a Democratic majority, and it throws out a set of court-drawn district maps that elected 7 Democrats and 7 Republicans from the closely divide state to Congress in 2022. Now, future elections will use maps drawn by the Republican-controlled legislature that will likely give GOP candidates ten or 11 of the 14 House seats in 2024 and beyond.

The N.C. Supreme Court based the decision on two arguments: that the principle of separation of powers requires deference to the legislature in redistricting, and that the court lacks “judicially manageable standards by which to adjudicate partisan gerrymandering claims.” The first ignores the requirement of the court to protect fundamental rights, which are violated when a partisan gerrymander denies some voters equal voting power and allows a party to keep itself in power against the wishes of the electorate. The second ignores the existence of a range of new measures that can analyze just how much a set of maps intentionally dilute votes.

It is worth reading the majority and dissenting opinions for a full articulation of this important debate.

Extreme partisan gerrymandering is now freely permitted in North Carolina, as it may be in other states to come, and it has been for federal courts since the 2019 Rucho v Common Cause decision, which reached similar conclusions for similarly flawed reasons. This is why Congress needs to act.

Congress has clear authority to regulate how states conduct redistricting for Congressional elections. Prior legislation, such as HR1 in 2018, called explicitly for states to establish independent redistricting commissions, a best case scenario solution in the eyes of many, including ERN. But many Members of Congress will balk at a law mandating commissions, and thankfully that’s not necessary to stop egregious partisan gerrymandering. The language of the final iteration of the Freedom to Vote Act (which our Mike Parsons helped draft) instead established core criteria to guide redistricting, including a prohibition on any district plan that “has been drawn with the intent or has the effect of materially favoring or disfavoring any political party,” along with the precise metrics that guide enforcement of that prohibition.

A law like that wouldn’t overturn the North Carolina court’s problematic interpretation of its state constitution, but it would prevent the NC legislature, and any other legislature, blue, red, or in between, from drawing a blatantly partisan map.

The politics of passage in Congress are challenging of course, but not impossible, at least over time. Republicans in the Senate offer an interesting starting point on this issue because a) ending gerrymandering has no effect on their own re-election, and b) extremism in the House should illustrate the potential advantage to GOP Senators of ending a practice that often results in the election of more extreme, less collaborative representatives.

By many analyses the 2020 redistricting cycle was roughly a tie between the two parties, with both sides taking advantage of majorities in states they controlled. That fact, and the fact that the next round is still too far off for anyone to know which party will control which state, can give both sides reason to support reform. This same logic — that both parties faced risks — powered passage of the critical Electoral Count Reform Act (as we pointed out in this opinion piece shortly after it passed).

ERN aims to play a role in supporting this and other arguments for a Congressional role and incrementally building the case. This will not be an effort for the faint of heart. Reform never is!