A federal court on Tuesday found North Carolina's congressional map to be an unconstitutional "partisan" gerrymander devised by the state's Republican lawmakers — and ordered the state to submit a new map by the end of the month.
The court gave the state until 5 p.m. Jan. 29 to submit a new map, but also began a process for appointing a special master who would draw a map if the state is unable to do so successfully.
The ruling comes as the Supreme Court is considering how partisan gerrymanders are considered by courts — in cases out of Wisconsin and Maryland — and it is expected that North Carolina lawmakers will ask to put the ruling on hold until the Wisconsin case, which was heard by the justices in October 2017, is resolved.
[UPDATE at 3:45 p.m. Thursday, Jan. 11: North Carolina lawmakers announced Thursday afternoon they are appealing the case to the Supreme Court.
The lawmakers had filed a request in the district court earlier in the day Thursday asking the court to put its order on hold and seeking "a ruling on this motion today so that legislative defendants can immediately seek relief in the United States Supreme Court if necessary." The district court, however, only ordered the challengers and state defendants to respond to the lawmakers' stay request by 5 p.m. Tuesday, Jan. 16. The state lawmakers shortly thereafter filed their notice that they would be appealing to the Supreme Court.]
[UPDATE at 12:45 p.m. Friday, Jan. 12: North Carolina lawmakers, now represented by Kirkland & Ellis partner Paul Clement, asked the Supreme Court on Friday, in an application to Chief Justice John Roberts, to stay the lower court's ruling pending their appeal to the justices.]
[UPDATE at 6:30 p.m. Thursday, Jan. 18: The Supreme Court has put the district court's ruling on hold, issuing a stay pending appeal. Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they opposed the stay.]
The possibility for delay, however, will soon run up against February filing deadlines for the North Carolina congressional races.
On Tuesday, the three-judge panel considering the case, in an opinion by Circuit Judge James Wynn, ruled that North Carolina's map violated Equal Protection Clause, the First Amendment, and the Election Clause of Article I of the Constitution. Judge William Britt joined Wynn's opinion. Judge William Osteen Jr. wrote separately, but ultimately agreed that, under current Supreme Court case law, the state's plan was unconstitutional — although he did not agree that it violated the First Amendment.
Although the 205-page ruling went into great detail about the plan, the claims, and the law, the underlying facts were blunt: After the original redistricting plan was struck down as a racial gerrymander, lawmakers asked the person they had redrawing the map to remedy the racial gerrymander and "to use political data ... in drawing the remedial plan."
Rep. David Lewis — the senior chair of the state House's redistricting committee — "acknowledge[d] freely that this would be a political gerrymander," which he claimed was "not against the law," the court noted.
In considering the Equal Protection claim, the court reviewed expert testimony in the case at length. One expert for the plaintiffs computer-generated 1,000 maps using "the non-partisan criteria included in the Committee’s Adopted Criteria: population equality, contiguity, minimizing county and VTD splits, and maximizing compactness."
The expert "found that none of the 1,000 plans yielded a congressional delegation of 10 Republicans and 3 Democrats — the outcome that would have occurred under the 2016 Plan — when he evaluated the sample." (The expert, Dr. Jowei Chen, went on to consider two other 1,000-map simulations to control for different situations — with the same result that none had as partisan a result as the actual map passed by the state.)
The court concluded that "the General Assembly intended to discriminate against voters who supported or were likely to support non-Republican candidates" and that "the 2016 Plan dilutes the votes of non-Republican voters and entrenches Republican control of the state’s congressional delegation."
In ruling the map unconstitutional under the First Amendment, the court looked to several areas of First Amendment law — including viewpoint discrimination ("prohibit[ing] the government from favoring or disfavoring particular viewpoints"), electoral speech dilution (addressing "the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers"), retaliation ("prohibiti[ng] ... burdening or penalizing individuals for engaging in protected speech"), and election regulations (having "the potential to burden political speech or association").
"Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest," Wynn wrote, before concluding the North Carolina plan violated the amendment.
The court also found that the plan violated provisions of Article I of the Constitution — clauses detailing that the "House of Representatives shall be composed of Members chosen . . . by the People" and the Elections Clause, which states that state legislatures have the authority to set the "times, places and manner of holding elections," subject to congressional alterations.
The court found the plan "exceeds the General Assembly’s delegated authority under the Elections Clause" because, in part, it "represents an impermissible effort to 'dictate electoral outcomes' and 'disfavor a class of candidates.'"
"[T]he 2016 Plan’s demonstrated partisan favoritism," the court concluded, "simply is not authorized by the Elections Clause."