North Carolina's Gerrymandering Drama Is Only Going to Get Worse

Federal judges have ruled—again—that the state’s congressional map is unconstitutional. But it just used that map to elect candidates for November.

Chuck Burton / AP

Perhaps it wasn’t the best idea for Republican state legislators in North Carolina to openly admit that they were drawing partisan gerrymanders. “I acknowledge freely that this would be a political gerrymander, which is not against the law”—that’s how state Representative David Lewis, the chief GOP official in charge of redistricting, characterized the latest congressional maps. He’d been sent back to the drawing board in 2016 by a federal court, which said the previous maps he’d authorized constituted racial gerrymanders. So Lewis and his team, still seeking to maximize Republican advantage, opted to redraw districts along aggressively partisan lines instead.

Lewis’s legal analysis was clearly lacking, as a decision Monday by a panel of federal judges deemed his revised plan an unconstitutional partisan gerrymander. Part of a labyrinthian series of court decisions spanning most of the past four federal election cycles, and involving multiple revisions of both state and federal maps, the judiciary’s latest blow to the North Carolina GOP might be the messiest, with midterms just around the corner. How will the decision influence the 2018 elections? How will the pending confirmation hearing of a new Supreme Court justice affect the decision? And just what does it mean that multiple legislative delegations have been elected in a state found repeatedly to have used unconstitutional means to decide who is represented, and how?

The federal challenge to Lewis’s latest maps, known as Common Cause v. Rucho, was one of several similar cases bouncing around federal courts, the most prominent of which was Gill v. Whitford, a challenge to Wisconsin’s districts that made it to the Supreme Court. A three-judge panel ruled against North Carolina in January before the high court finished considering Whitford, making it the first-ever federal court to rule against partisan gerrymandering. But the Supreme Court’s eventual decision in Whitford essentially punted on the issue, demanding that plaintiffs in Wisconsin meet a new evidentiary burden in order to gain standing. That punt also remanded Common Cause back to the federal panel, so the judges could reconsider it based on the guidelines established in Whitford.

This week, the panel found that nothing in the justices’ ruling changed its calculus on the extraordinary partisan advantage baked into North Carolina’s congressional districts, which the Duke University statistics professor Jonathan Mattingly, a witness for the plaintiffs, called an “extreme statistical outlier.” “We further conclude that Whitford did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims,” the judges wrote in their decision Monday.

Voting-rights and liberal groups immediately hailed the ruling as a victory. “Now that a federal court has—once again—told Republican legislators that their gerrymandered maps are unconstitutional, this shameful era should finally come to an end,” said former Attorney General Eric Holder, now the chairman of the National Democratic Redistricting Committee, in a statement. “Why are Republicans afraid of the voters they claim they want to represent?”

But Common Cause, the watchdog group that was the lead plaintiff in the matter, acknowledged Monday that its win isn’t the end of this saga. The state is expected to make a hasty appeal, and close observers of the case expect it to return to the Supreme Court. “While we look forward to having our landmark case now go before the highest court in the land, it’s regrettable that North Carolina voters this November will be voting in congressional districts that have been found unconstitutional,” said Bob Phillips, the group’s North Carolina executive director.

It’s actually unclear if the state will use the rejected congressional map this November. The federal panel set an August 31 deadline for plaintiffs and defendants to submit briefs advising whether the General Assembly should be given another crack at redrawing districts. If it’s allowed to redraw them, it’d have just three weeks to get it done.

But the possibility of redrawn districts raises a host of additional difficulties—for one, North Carolina has already had primary elections based on the now-unconstitutional map. In order to get around that problem, the court proposes two possible solutions. The first option is to proceed with the primary candidates voters have already chosen, and have them run in their existing districts. The second is to nullify the previous primary elections and hold new ones in place of a general election this November. Then, a new general election could be held sometime before January.

After considering each side’s briefs, the court could decide that the General Assembly is not fit for the task of redrawing maps that it’s botched twice before. In that case, the court, the plaintiffs, and the defendants could come to an agreement on the appointment of a special master to handle the task. But still, the same considerations about the primary elections would be in play. In all, the state will face two paths forward that are both imperfect: It can go ahead with elections based on a map that was just declared unlawful, or it can try and change the entire shape of the election—perhaps even invalidating a primary and calling a new one—within the space of two months.

Republican leaders in the state are opposed to the latter plan. In a joint statement released Tuesday afternoon, House Speaker Tim Moore and Senate Leader Phil Berger, both Republicans, said: “What the court suggests is simply impossible. [We’re] not aware of any other time in the history of our country that a state’s Congressional delegation could not be seated, and the result would be unmitigated chaos and irreparable voter confusion. The Supreme Court must step in to correct this disastrous decision.”

Normally in a case like this, where an appealed decision would affect state law and elections, the Supreme Court would probably intervene. But there’s no guarantee of that now. Since Anthony Kennedy’s resignation at the end of the last term, the Court has been at a 4–4 impasse awaiting the confirmation hearing of President Trump’s appointee, Brett Kavanaugh. It’s unlikely that the Court could break that impasse in order to issue an injunction and impose some kind of order ahead of its future decision in the case.

Even the prospect of Supreme Court review is cold comfort to the Common Cause plaintiffs. By the time the high court could see the case, the landscape could look very different. Assuming Kavanaugh is confirmed, the next Court isn’t expected to be nearly as skeptical as the previous one on the issue of partisan gerrymandering. A Kennedy opinion, outlining the need for better ways to measure political advantage, was the reason challenges to partisan gerrymanders were even given a shot in the Supreme Court. If he’s replaced with a less idiosyncratic, traditional conservative, as Kavanaugh appears to be, North Carolina’s appeal could very well be successful. And if the lower court orders new maps before the justices rule, those maps would likely be overturned in the Supreme Court’s decision. There’s no way out of this situation that doesn’t involve confusion and chaos.

In North Carolina, the certainty of more drama recalls an important issue that was highlighted by Judge James Wynn, who wrote for the panel’s majority. “We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan—and, therefore, constitutional representation in Congress—for six years and three election cycles,” he wrote. What does it mean for a state if three election cycles—potentially four—are considered invalid under the law? Is there any real recourse for voters who have been saddled with some form of illegitimate governance for most of the past decade? Those questions demand answers. Unfortunately, in a state where turmoil has long been the rule rather than the exception, they’ll all be found out through trial and error, and likely with the same show of political maneuvering and manipulation by state GOP officials. And it’s 2018. The next round of map drawing is just over two years away.