On Tuesday, Democrats and voting rights groups filed a lawsuit in North Carolina state court arguing that Republican gerrymanders of the state Senate and state House violate the state constitution’s guarantee of "free" elections. This case has a strong chance at success, meaning it could yield much fairer maps for the 2020 elections. That could in turn allow Democrats to regain majorities in both chambers and even give the party full control over state government if Democratic Gov. Roy Cooper wins re-election.
Critically, this lawsuit relies solely on the state constitution, following the lead of reformers in Pennsylvania. There, a case before the state Supreme Court struck down the state's Republican congressional gerrymander earlier this year, citing Pennsylvania's constitutional guarantee of "free and equal" elections (phrasing that’s nearly identical to language in North Carolina's constitution). And because the ruling depended on the state constitution, that left little room for Republicans to seek redress in the federal courts: The U.S. Supreme Court declined to take up the GOP's appeal, and Pennsylvania voters enjoyed a much fairer congressional map in 2018.
Consequently, if plaintiffs obtain a favorable decision in North Carolina’s state courts, there’s a good chance that the federal judiciary won’t overturn it—much as John Roberts might want to. And Democrats have a solid shot at prevailing because civil rights attorney Anita Earls just won a critical Supreme Court race to expand Democrats’ majority on the bench to 5-to-2. At the same time, voters also protected the state courts by rejecting a deceptive GOP-backed constitutional amendment that would have allowed Republicans to add two more justices to the Supreme Court.
Pennsylvania’s congressional gerrymandering lawsuit took less than a year to resolve, so North Carolina could likewise see a speedy resolution that would allow the 2020 elections to take place under new maps. However, the courts could ask the GOP-dominated legislature to propose new maps, and lawmakers would do their best to maintain their gerrymanders if given the chance. (In North Carolina, the governor lacks the authority to veto redistricting measures, and Republicans still hold both chambers thanks to their gerrymandered majorities, even though Democrats won more votes statewide in 2018.)
But Republicans may not be afforded the presumption of good faith that legislators normally receive when courts strike down maps for constitutional violations.
That’s because GOP lawmakers have gerrymandered Congress, the legislature, city councils, county commissions, school boards, and even judicial districts, only to have courts strike down nearly all of them at least once. Indeed, the GOP legislature just had to redraw its own districts in 2017 after a federal court struck down their original 2011 maps for racial gerrymandering, and even their replacement gerrymanders were curtailed in federal court earlier this year and again struck down in state court later this year, too.
Given this history, the North Carolina Supreme Court may be disinclined to defer to the legislature—and for good reason: The GOP unequivocally admitted they pursued their maximum partisan advantage when they redrew congressional districts in 2016 as a perverse defense against charges of racial discrimination. When Pennsylvania’s Democratic governor promised to veto the GOP legislature’s replacement gerrymander, that state’s high court stepped in and drew a much fairer map itself. While Cooper can’t veto a GOP map in North Carolina, its Supreme Court could simply refuse to let Republicans have yet another bite at the apple.
If the court does indeed strike down both maps and draws fairer ones, North Carolina voters would get their first chance since the 2010 census to vote under constitutional districts. That could finally allow the party that wins the most votes to consistently win the most seats. Those elections will also determine which party has control over redistricting for the coming decade. If Democrats can prevail, that might finally bring an end to a long era of misrule that has seen Republicans go to unparalleled extremes to eviscerate democracy itself and instead restore the rule of law in North Carolina.
