Reggie Weaver speaks outside the Legislative Building in Raleigh, N.C. about a gerrymandering ruling by the North Carolina Supreme Court on Feb. 15, 2022.
Republicans gained two seats on the North Carolina Supreme Court a few months ago and immediately put them to work reversing its own recent decision banning partisan gerrymandering. This will likely hand the GOP four seats in the closely divided U.S. House after the 2024 congressional election. It also probably guarantees that Republicans can gerrymander themselves into a permanent supermajority in the North Carolina legislature, much as Wisconsin did prior to losing its conservative Supreme Court majority last month.
As North Carolina Supreme Court Justice Anita Earls, a Democrat, wrote in dissent, “Today’s result was preordained on 8 November 2022, when two new members of this Court were elected to establish this Court’s conservative majority. To the Court’s new majority, the parties’ briefing after rehearing was granted did not matter. The oral argument held after rehearing was granted did not matter. The merits of Plaintiffs’ arguments do not matter. For at stake in this case is the majority’s own political agenda.”
The North Carolina decision
Last February, the North Carolina Supreme Court ruled that House districts created by the Republican state legislature—which in a 50-50 state would likely have resulted in 10 Republican House seats and only 4 Democratic seats—constituted a partisan gerrymander in violation of the North Carolina constitution, requiring new, fairer, districts. The ensuing new maps resulted in an even 7-7 split between Republicans and Democrats in the 2022 election. As recently as December 2022, that court again upheld the decision.
But wait only a few months.
In the fall 2022 elections, Republicans gained two new justices, flipping the court’s majority to the GOP. That led the Court to accept a petition for rehearing and reverse its own precedent from a few months earlier, ruling that there’s nothing unconstitutional about partisan gerrymandering.
In her dissent to the decision to rehear the case, Justice Earls called the reversal a “radical break with 205 years of history.” Since 1993, 214 petitions for rehearing had been presented to the North Carolina Supreme Court and only two had been granted. Since the December 2022 decision, nothing in the facts or the law has changed. “The only thing that has changed is the political composition of the Court,” Earls said, warning that “[T]his Court took just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.”
A few years earlier, one of the Republican chairmen of North Carolina’s legislative redistricting committee explicitly proclaimed, “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” The new Republican Supreme Court majority backed him up.
North Carolina is essentially a 50-50 state. Democratic Governor Roy Cooper has won two consecutive statewide elections in 2016 and 2020. In the 2020 Presidential election, Trump narrowly won North Carolina’s electoral vote with 50.1 percent of the vote.
Now, with the ruling permitting unlimited partisan gerrymandering in North Carolina, Politico predicts that in 2024 Republicans could win ten or even eleven House seats in the state, leaving Democrats with only three or four.
Since Republicans currently hold only a four-vote majority in the House, even if Democrats pick up four House seats elsewhere in the 2024 elections, North Carolina’s partisan Supreme Court justices may have handed Republicans control of the House until at least 2026.
Other states
Some blue states have been far less partisan in designing electoral districts. For example, California, Michigan and several other states use bipartisan commissions. If Democrats gerrymandered those states the way the new North Carolina Supreme Court is allowing Republicans to, they could pick up several more House seats.
New York is a strange case. In a constitutional amendment pushed by disgraced former Democratic Governor Andrew Cuomo, partisan gerrymandering is prohibited and districts are determined by a complicated combination of the legislature and a bipartisan advisory commission. For the 2022 election, legislative redistricting was overturned by New York’s highest court, who then relied on a special master to redraw districts. It led to Democrats losing 4 seats in the 2022 election, including the seat won by George Santos. It’s unclear if Democrats can relitigate the maps or regain the seats in 2024.
Given various courts’ ratification of minority rule, those who cherish democracy will have to work extra hard to elect super-majorities in those states to overcome partisan gerrymandering.
That the extent to which partisan gerrymandering is permitted is essentially decided on a state-by-state basis results in part from the 2019 Supreme Court 5-4 ruling in Rucho v. Common Cause, written by Chief Justice John Roberts (joined by Gorsuch, Kavanaugh, Alito and Thomas). Roberts held that SCOTUS and other federal courts have no legal authority under the Constitution to review partisan gerrymandering because it’s allegedly a “political question” outside federal jurisdiction. Roberts left the rules on partisan gerrymandering, even in federal elections, to the states. Some, like North Carolina, now permit it, and others, like California and New York, don’t.
The North Carolina Supreme Court more or less followed Roberts’ non-interventionist model, holding that partisan gerrymandering is not subject to judicial review under the state constitution. It also set a model for other states with Republican-majority legislatures and courts to justify partisan gerrymandering.
According to the Brennan Center, as of March 28, 2023, a total of 73 cases have been filed challenging congressional and legislative maps in 27 states as racially discriminatory and/or partisan gerrymanders, of which 46 remain pending at either the trial or appellate levels. So control of the House and many state legislatures will be determined not by the voters but the often partisan whims of various states legislatures and courts.
What will SCOTUS do about the North Carolina decision?
The reversal by the North Carolina Supreme Court now leaves open what the U.S. Supreme Court will do about the existing appeal to the original North Carolina decision, known as Moore v. Harper. The North Carolina legislature had already appealed Moore v. Harper to SCOTUS, which has granted cert, accepted briefs and heard oral arguments. The decision has been expected for the past several weeks.
The appeal is largely based on the fringe legal doctrine called the “independent state legislature doctrine” which posits that under the Constitution, only state legislatures have the authority to govern federal elections in their state (including drawing House districts), while governors and state courts have no legal authority to question them.
With the North Carolina Supreme Court just having reversed itself on other grounds, the question is what SCOTUS will do now with the appeal. It could still issue its decision, which would likely reveal the extent, if at all, to which SCOTUS will adopt the independent legislature doctrine and create a new and dangerous precedent, not just on partisan gerrymandering but also voter suppression laws enacted by state legislatures. Or, SCOTUS could dismiss Moore v. Harper as now moot and not reach this issue.
A dismissal would leave the status of the independent state legislature doctrine uncertain. Until recently, the doctrine has stood well outside the mainstream of constitutional law. But at least four current Republican Supreme Court Justices have expressed some sympathy for it. If there’s no substantive decision in Moore v. Harper, there could be a cloud hanging over all future state court decisions which limit state legislatures’ ability to gerrymander or suppress the vote. Of course, removing all doubt that state courts cannot question legislative actions on elections would not be a good outcome either. Given various courts’ ratification of minority rule, those who cherish democracy will have to work extra hard to elect super-majorities in those states to overcome partisan gerrymandering. And where judges are elected, they will have to focus on defeating partisan right-wing judges, as recently occurred in Wisconsin.
