If politics can be described as a contact sport, it’s perhaps fitting to say that when the Republicans who control North Carolina’s General Assembly went to court to defend the extreme gerrymandering that has helped keep them in power, they suffered no less than an epic beat-down.
Three judges capped years of litigation with an explosive Sept. 3 ruling that scraps the current state House and Senate election district maps and requires them to be redrawn so they treat all voters – even, gasp, Democrats! – fairly and equally under the state constitution.
For those, including the N.C. Council of Churches, who have seen partisan gerrymandering at the root of so many of our state’s governmental challenges, the ruling amounts to a profound reaffirmation of the state courts’ role in remedying abuses by the legislative branch. That reaffirmation becomes even more striking after the U.S. Supreme Court, in a high-profile North Carolina case, decided in June that partisan gerrymandering at any outlandish scale is a problem beyond the federal courts’ reach.
Tellingly, a top Republican legislator, Senate President Pro Tem Phil Berger, said there would be no appeal. Some complaining, for sure – but Berger said it was time to move on, past the redistricting battles that have played out unceasingly for the past decade (and in different contexts, even longer).
Whatever Berger’s rationale, the fact is that in their 357-page ruling, Superior Court Judges Paul Ridgeway of Wake County, Joseph Crosswhite of Iredell and Alma Hinton of Halifax (a Democrat, Republican and Democrat, respectively) left the legislative defendants in the anti-gerrymandering case nowhere to run and nowhere to hide.
The judges, following a 10-day trial in July, synthesized a mountain of evidence showing how the legislative districting scheme deliberately marginalized voters who threatened Republican rule.
Tracking trial testimony, they laid out in compelling detail how the scheme – engineered by the late Republican mapping guru Tom Hofeller in private consultation with key legislators – went far beyond the sort of partisan gamesmanship that long has accompanied district-drawing conducted as an inherently political process.
And they tied their findings to conclusions flowing directly from several of the state constitution’s bedrock guarantees: Free elections. Equal protection of the laws. Freedom of speech and freedom of assembly.
It was precisely the sort of outcome that U.S. Chief Justice John Roberts Jr. seemed to anticipate when he said remedies for partisan gerrymandering could be found at the state level even if the federal courts were impotent to address it. Some might have thought Roberts was engaged in wishful thinking, but Ridgeway & Co. took him at his word. It’s reasonable to think that if an appeal did reach the state Supreme Court, the justices who form a 6-1 Democratic majority would be on the same wavelength.
Elections for all
The state constitution, in the course of its Declaration of Rights, states flatly that “All elections shall be free.” There is no elaboration as to what that freedom must entail.
But as the panel of judges asserted, the courts have a basic duty to interpret constitutional language and apply it to real-life situations. They declared that elections aren’t legitimately free if election districts are drawn in such a way that the results are essentially pre-cooked – which is precisely the upshot of extreme partisan gerrymandering.
The lawsuit they considered – brought by the North Carolina branch of Common Cause, along with the state Democratic Party and several individual plaintiffs – challenged a set of House and Senate districts crafted in 2017. But the genesis of the case went back to 2011 – when the legislature carried out its prescribed adjustment of district boundaries to reflect the once-a-decade census taken the previous year.
Republicans had seized control of both legislative houses in the 2010 elections, capitalizing on the tea-party blowback against President Obama and helping execute a national GOP strategy to magnify their state-level influence. Gaining the power to redistrict following the census was a key objective.
The maps they drew, both for legislative and congressional districts, paid off with outsized Republican gains in the elections that followed – outsized compared with the two major parties’ overall vote totals. Even when Democrats accounted for roughly half of the votes cast, Republicans claimed lopsided majorities in the state’s congressional delegation and in both legislative chambers.
The maps were challenged first as being racial gerrymanders – parceling out Democratic-leaning black voters in ways that drained their influence and boosted GOP candidates. Those complaints of unconstitutional race discrimination prompted court orders to redraw.
But the map wizards had other tricks at hand. Using ultra-detailed data from past elections and high-tech mapping software that old-time gerrymanderers could only fantasize about, they fashioned districts where Democratic voters were either packed or cracked.
In the first case, they were so packed together that a Democratic candidate would coast to victory on a tide of surplus votes. In the second, they were cracked, or spread, among a larger number of Republican-leaning districts so they couldn’t reach a critical mass. Net result: A bumper crop of GOP wins.
A lower-level federal court agreed with Common Cause that a 10-3 Republican split in North Carolina’s congressional delegation – in a so-called purple state where the major parties are competitive – showed partisan gerrymandering that could and should be curbed under the U.S. Constitution. That’s when Chief Justice Roberts and his GOP colleagues disagreed, prevailing in a 5-4 decision.
But Common Cause and the Democratic Party pressed their challenge to the state legislative maps, even after the 2017 redraw that was supposed to cure the racial gerrymanders.
Republicans since the elections of 2012 had held veto-proof majorities in both the House and Senate, bedeviling first GOP Gov. Pat McCrory and then his successor, Democrat Roy Cooper, while greasing the skids for a narrow-minded, tax-cutting agenda that has worked against the public interest in more ways than we can count.
When the 2018 elections were over – elections featuring a notable “blue wave” — the Republican margin of control had narrowed to 65-55 in the House and 29-21 in the Senate. But this was while the Republicans garnered only 48.8 percent of the two-party House vote and 49.5 percent of the equivalent Senate vote.
Tales of the tape
Judges Ridgeway, Crosswhite and Hinton cited those statistics among many to illustrate how gerrymandered district maps were corrupting a process in which voters should be entitled to an equal say – not only to cast a vote on equal terms, but also to have that vote carry equal weight in deciding the state’s political course.
As the judges aptly put it, extreme partisan gerrymandering – or “redistricting plans that entrench politicians in power, that evince a fundamental distrust of voters by serving the self-interest of political parties over the public good, and that dilute and devalue votes of some citizens compared to others — is contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”
The case took a bizarre turn when computer files developed by the mapping consultant Hofeller wound up in his daughter’s custody after his death in Raleigh last summer. The files were subpoenaed by Common Cause after she told the group of their existence.
Republican defendants sought to keep the material under wraps, but the court allowed some evidence from them to be introduced. And no wonder, because it showed how determined Hofeller had been to maximize Republican prospects at Democrats’ expense. Further, it became clear that the GOP map redraws in 2017 were largely done by Hofeller, in secret, before legislators approved the criteria he was supposed to use.
The judges said they were “troubled” by legislators’ claims denying that such drafts had been prepared. But they cited that history as one reason now to put the legislative mapmakers on a short leash.
The maps will have to be refashioned by Sept. 18 – two weeks after the ruling was issued. Work will have to be done in public, emphasizing transparency, and will have to start with clean slates, not simply building on the “cores” of prior districts. While reasonable efforts may be made to avoid putting incumbents in the same districts, the judges told mapmakers that “partisan considerations and election results data shall not be used” [their emphasis].
If the court follows through on its stated resolve to rein in partisan gerrymandering, this could become a watershed in North Carolina’s modern political history.
While it’s true that election outcomes are influenced by many factors – candidate quality, national trends, the preferences of unaffiliated voters, for example – our state’s civic climate has been polluted by redistricting abuses that have enabled legislators once in power to shield themselves from proper accountability.
As practiced by the Republicans who have controlled the General Assembly for the past decade, gerrymandering has posed an obstacle for many – the Council of Churches among them — who think the state’s well-being rests on broader opportunity for all, especially those weighed down by the misfortunes that frustrate dreams of a better life. We now can hope it’s not too much to ask that the court’s powerful ruling becomes a roadmap to fairer, more public-spirited, more compassionate government.
