UPDATE, August 28, 12:00 p.m.: In response to the U.S. Supreme Court’s order to reconsider the case, a three-judge panel of the Fourth Circuit Court of Appeals first ruled Monday that the plaintiffs had standing to sue. It then proceeded to rule that the 2016 North Carolina congressional maps are an unconstitutional partisan gerrymander and that the legislature drew the maps to favor Republicans over Democrats. The court did not set a remedy and asked the parties to the lawsuit for immediate briefing on what that remedy should be. It is unclear whether a remedy will be in place in time for the November elections.
The U.S. Supreme Court on Monday sidestepped another gerrymandering case, leaving the constitutionality of partisan gerrymandering an open question.
The Court remanded Rucho v. Common Cause, a case regarding North Carolina Republicans’ redrawn congressional map, so that the district court can determine whether, in light of the Court’s ruling this month in Gill v. Whitford, plaintiffs in the case have standing to sue.
The Supreme Court already struck down one of North Carolina’s gerrymandering efforts: In Cooper v. Harris, the Court held that plaintiffs in that case had presented the district court with sufficient evidence to find race was the primary rationale for the GOP’s redistricting.
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In response, the GOP-held North Carolina legislature redrew the maps, but made it clear that it was doing so for partisan advantage, not racial advantage.
“I think electing Republicans is better than electing Democrats,” state Rep. David Lewis (R-Harnett) told the Washington Post. “So I drew this map to help foster what I think is better for the country.”
“I propose that we draw the maps to give a partisan advantage to ten Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” he continued.
The plan worked: Republicans hold ten out of 13 districts even though statewide, the votes between Democrats and Republicans were almost evenly split: Republicans in 2016 won only 53 percent of the statewide vote, according to the Washington Post.
Plaintiffs in Common Cause argue that the redrawn map is an unconstitutional partisan gerrymander that violates the First Amendment, which bars the government from favoring or burdening voters based on their political affiliations, and the Equal Protection Clause of the 14th Amendment, since the GOP’s remedial map disadvantaged Black voters.
Plaintiffs allege the redistricting plan violates Article I, Section 2 of the U.S. Constitution because they allege representatives would not be chosen by “the people of the several states” but by whichever party controls the state legislature, and Article I, Section 4 of the U.S. Constitution regarding the authority of state legislatures to prescribe the times, places, and manner of holding elections.
In January, a three-judge panel of a district court in North Carolina ruled that Republican legislators’ remedial maps violated the Constitution since they were drawn to hurt the electoral chances of Democratic candidates and ordered the legislature to redraw the maps. But before the maps could be redrawn, North Carolina sought and won a stay from the Supreme Court pending the Court’s decisions in Gill v. Whitford and Benisek v. Lamone (the Wisconsin and Maryland gerrymandering cases.)
The Supreme Court has ruled that racial gerrymandering can violate the Constitution. But it has never struck down a voting map as an unconstitutional partisan gerrymander. In Arizona State Legislature v. Arizona Independent Redistricting Commission, a 2015 case which upheld the rights upholding the right of Arizonians to remove congressional redistricting power from legislators, the court said partisan gerrymanders are “incompatible with democratic principles.”
The Court has not found them incompatible enough to warrant striking them down.
“Our legal fight against partisan gerrymandering in Rucho v. Common Cause continues, and we are confident the court will ultimately affirm our landmark victory in this case,” Bob Phillips, executive director of Common Cause North Carolina, said in a statement. “We must end gerrymandering to ensure all voters have a voice in our democracy.”