Calling partisan gerrymandering an “existential threat to our democracy” and accusing North Carolina Republicans of having “egregiously rigged the state legislative district lines to guarantee that their party will control both chambers of the General Assembly,” the state Democratic Party and Common Cause filed a lawsuit against the General Assembly asking the Wake County Superior Court to throw out the state’s legislative districts ahead before the 2020 election.
As the INDY reported last week, Democrats running for the state House and Senate got more votes than Republicans last week, but Republicans got substantially more seats.
“The results,” the lawsuit says, “should outrage anyone who believes in democracy.”
This wouldn’t be the first time the legislative districts passed in 2011 were redrawn. In 2017, a federal court ruled that the lines amounted to unconstitutional racial gerrymanders and ordered lawmakers to try again. They did—bringing in the same mapmaker, who was instructed to rely on the same partisan data and prior election results. The court then ruled the new map was also unconstitutional and brought in a so-called special master to redraw some districts, which were the ones used last week.
This lawsuit makes a somewhat different argument: Instead of claiming the districts are racial gerrymanders, it argues that the districts are partisan gerrymanders, which it contends are illegal under the North Carolina Constitution. (Earlier this year, a federal court ruled that North Carolina’s congressional districts were also unconstitutional partisan gerrymanders, but that decision came too late to affect the 2018 midterm elections.)
“This State’s equal protection guarantees provide more robust protections for voting rights than the federal constitution,” the lawsuit argues. “Specifically, ‘[i]t is well settled in this State that the right to vote on equal terms is a fundamental right.’ … There is nothing ‘equal’ about the ‘terms’ on which North Carolinians vote for candidates for the General Assembly. North Carolina’s Constitution also commands that ‘all elections shall be free’—a provision that has no counterpart in the federal constitution. Elections to the North Carolina General Assembly are not ‘free’ when the outcomes are predetermined by partisan actors sitting behind a computer. And the North Carolina Constitution’s free speech and association guarantees prohibit the General Assembly from burdening the speech and associational rights of voters and organizations because the General Assembly disfavors their political views.”
Neither the timing of the lawsuit nor its venue—in state court, rather than federal—is coincidental.
This lawsuit—which former longtime legislative staffer Gerry Cohen predicted last week on the INDY’s podcast, INDYcast—follows Anita Earls’s election to the N.C. Supreme Court, which gave Democrats a 5–2 majority. As executive director of the Southern Coalition for Social Justice, Earls was integral to previous gerrymandering lawsuits. On the high court, she seems likely to lend a sympathetic ear to anti-gerrymandering claims—and with a Democratic majority, the court seems likely to follow suit.
“No matter how the U.S. Supreme Court resolves longstanding questions about partisan gerrymandering under the federal constitution,” the lawsuit says, “North Carolina’s Constitution independently secures the rights of North Carolina citizens. This State’s courts should not hesitate to enforce North Carolina’s unique protections here. This Court should invalidate the 2017 Plans and order that new, fair maps be used for the 2020 elections.”
“Because lawmakers stubbornly refuse to consider passing redistricting reform, we’re left with no choice but to litigate,” Bob Phillips, executive director of Common Cause North Carolina, said in a press release. “Gerrymandering is detrimental to democracy, denying voters a choice and a voice on Election Day. We believe we will prevail in court and the people of North Carolina will finally get what they deserve – fair maps for the state House and Senate.”
Common Cause’s press release points out, the General Assembly that is elected in 2020 will be tasked with drawing districts for the next decade.
“As drawn,” it says, “there is no conceivable way for Democrats to win a majority in either chamber. Because the governor does not have to sign or veto legislative maps in North Carolina, without legal intervention, the Republican majorities elected under the current gerrymandered maps will have free reign to gerrymander both the state legislative and congressional maps yet again when redistricting occurs in 2021.”
Common Cause v. Lewis Complaint FILED Nov 13 2018 by Jeffrey Billman on Scribd