Legislative leaders sought to cement their ability to gerrymander their own districts without courts being able to strike them down, in arguments they made Tuesday to the N.C. Supreme Court.
In February, the state’s highest court issued a historic ruling — which the Republican lawmakers on the losing end strongly condemned — in which the justices wrote that state courts have the power to throw out maps for partisan gerrymandering.
GOP leaders appealed their losses in two different ways. They took one appeal to the U.S. Supreme Court, in a case called Moore v. Harper.
That federal lawsuit has gained national prominence for promoting the controversial “independent state legislature” theory that some critics say could potentially allow state lawmakers to overturn presidential election results in 2024 and beyond — a strategy that multiple Republican-led states tried, but failed, to enact in 2020 to keep Donald Trump in power. That case will likely be argued in December.
The second appeal went back to the N.C. Supreme Court, which held arguments Tuesday morning.
It focused solely on how much power state courts should have in the future to decide if the legislature violated the state constitution by engaging in partisan gerrymandering.
What they said
Phil Strach, a lawyer for Republican legislators, argued that state courts have overstepped their bounds and should now limit their power, by giving significantly more deference to whatever the legislature wants to do in the next round of redistricting.
“Otherwise, this court is barreling into the political wilderness, where the legislative authority to redistrict will be transferred from the legislature to the courts,” Strach said.
But if that happens, the Democratic voters and anti-gerrymandering activists on the other side argued, then lawmakers will have free rein to draw maps to guarantee they’ll stay in charge, even if the voters want a change.
Elisabeth Theodore, one of the lawyers arguing against partisan gerrymandering, said GOP lawmakers drew a map to give themselves more than enough seats for a 60% supermajority in the N.C. Senate, even if they won a smaller 55% of the vote statewide. Meanwhile, she said if Democrats won that same 55% of the statewide vote, they’d have only a regular majority. A supermajority is important because it allows the party in charge to override a veto from the governor even if no members of the other party agree.
Theodore said that’s just one reason why it’s important for courts to watch over the redistricting process, making sure the legislature is giving all voters an equal voice.
“This doesn’t turn making maps into a game of ‘Gotcha,’” she said. “It’s actually not that hard to pass a map that’s fair.”
Similar to SCOTUS case, but not the same
The “independent state legislature” case before the U.S. Supreme Court is asking for a sweeping expansion of power in the legislative branch, by allowing them to pass election laws without the possibility of those laws being ruled unconstitutional in state court.
North Carolina lawmakers will tell the nation’s high court that even though state courts have been allowed to rule in election cases for many generations, that’s not what the Founding Fathers intended. State courts should be banned from issuing rulings on anything related to federal elections, they say — including redistricting for U.S. House seats, as well as voting rights issues.
While that argument would apply to more than just redistricting, it would apply only to federal election issues. That’s where the second appeal at the N.C. Supreme Court comes in. It could give lawmakers more power to engage in partisan gerrymandering for their own seats in the state legislature, too.
That’s simply how the law is intended to work, Strach said: The legislature long ago voted to give redistricting power to itself, not state courts.
The court’s February ruling on partisan gerrymandering was relatively new ground. It wasn’t the first time a state court had ruled maps unconstitutional for partisan gerrymandering — that happened in 2019 — but it was a first for the state’s highest court.
Too much math?
Redistricting can be a math-heavy topic, with academic experts using computer algorithms to draw thousands or (depending on the program) even billions of potential versions of the state’s political districts.
The News & Observer’s award-winning podcast series “Monster: Math, maps and power in North Carolina” dove deep into explaining this under-reported aspect of redistricting last year.
In the redistricting trial early this year, the judges spent days listening to expert witnesses for both sides present highly technical analyses of the maps, slicing and dicing them in different ways to argue whether they were skewed. Ultimately, the courts decided the challengers had the better case, and that the maps were impermissibly skewed.
A key part of Strach’s case Tuesday was that the legislature should have near-total control over what data and metrics courts are allowed to look at in the future.
Next time, he said, courts should only compare the maps to metrics the legislature has voted to acknowledge — not any other metrics that the people challenging the maps want to use.
Chief Justice Paul Newby, a Republican, indicated that it could be a policy question for the legislature, and not a question for the courts. But Justice Anita Earls, a Democrat, said judges in racial gerrymandering cases have long been allowed to hear all sorts of evidence and expert testimony. She questioned why they would now limit what kinds of evidence judges are allowed to hear in partisan gerrymandering cases.
Strach responded by criticizing the court’s February decision that established partisan gerrymandering as unconstitutional.
“Cases involving racial discrimination are based and premised upon specific language in a statute,” he said. “They are not pulled out of whole cloth, out of provisions that say nothing about redistricting.”
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