Voters protesting the impact of North Carolina’s redistricting measures.

Gerrymandering Case Certainly Headed to State Supreme Court

Voters protesting the impact of North Carolina’s redistricting measures.

On August 7th, written closing summary briefs were due from both sides in the controversial Common Cause v. Lewis partisan gerrymandering case. A three-judge panel recently heard two weeks of testimony in the case.

A court decision may be evident in weeks or months. Plaintiffs are hopeful a favorable decision comes in time to redraw voting districts for 2020 legislative elections.

What is more likely, legal and political observers agree, is that the court decision will be appealed to the NC Supreme Court, which will render the final decision.

Whether or not that will occur in time for the 2020 elections no one knows, but the implications are stark. Whoever wins the decision may be able to control who wins the 2020 legislative elections, and with them, the right to redraw the voting districts that will govern the next decade for the state House, state Senate, and the 13 congressional districts.

Democrats could retake the NC General Assembly for the first time since 2011, and keep it through 2030.

But such an outcome is possible only if the Supreme Court, with its majority of Democratic justices, rules that Republican legislative leaders violated the state Constitution by drawing up a voting map based on “extreme” partisan gerrymandering.

State Rep. David Lewis (R-Harnett), chair of the House Redistricting Committee, was sued by Common Cause NC, the nonpartisan redistricting reform organization, and the NC Democratic Party, both of which claimed that the Republican-led NC General Assembly’s 2016 redistricting maps violated North Carolina’s Constitution because voting districts were deliberately drawn to deny Democrats any opportunity to ever win back the majority in either the state House or Senate.

The trial featured some of the infamous files from the estate of the late Thomas Hofeller, the Republican redistricting mapmaker who had previously drawn several racially-gerrymandered voting districts that were ultimately struck down by the federal courts.

The trial was also highlighted by false testimony by a witness for the Republican defendants, testimony that was ultimately thrown out of court. That witness was supposed to disprove claims by the Common Cause attorneys and witnesses that the GOP maps drawn by Hofeller violated the state Constitution. Republican lawyers claimed that Democrats lost in the 2018 elections in several districts because they had lousy candidates, not due to rigged maps. Furthermore, the Republican attorneys claimed, the courts really have no say in the matter, because in the political process, the voters decide.

Plaintiffs, however, argued that for voters to fairly decide, the rules governing elections must be fair. When those rules, in the form of redrawn voting districts that assure one party an absolute certainty of victory, then the rules have been skewed, thus violating the rights of voters of the other party to have representation of their choice.

Because the state’s Supreme Court comprises six Democrats and one Republican—who has already taken his Democrat colleagues publicly to task for allegedly being “AOC” liberals, referring to freshman NY Congresswoman Alexandria Ocasio-Cortez—it is generally assumed that the majority will side with Common Cause and the NC Democratic Party.

“At least three of the Democratic-backed judges on the State Supreme Court would have to join the lone Republican-backed colleague in declining to overturn the state’s legislative maps, and I don’t see where those three votes would come from among the six Democratic-backed judges on the court,” Wake Forest University Politics and International Affairs Professor John Dinan told Carolina Journal recently.

But if, as expected, the state’s highest court, led by Chief Justice Cheri Beasley, does come down against the Republican leaders, the majority will be extremely careful to ensure that their decision is legally sound and constitutionally justified. Several of the justices are themselves up for reelection in 2020, and Republicans are already lying in wait to make political hay out of their decision if the GOP loses the case—or even if it wins.

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