North Carolina lawsuit to decide if partisan gerrymandering is too partisan

The U.S. Supreme Court refused to rule in a North Carolina lawsuit on partisan gerrymandering. Now state judges are considering the case.
(Jim Lo Scalzo / EPA/Shutterstock)

A three-judge North Carolina panel was considering Friday whether politicians can be too extreme in drawing legislative voting districts to their advantage, a judgment the U.S. Supreme Court refused to make about congressional elections.

The state judges started deliberating at the end of a two-week trial examining North Carolina legislative districts that were redrawn in 2017 to address racial bias. Democrats and their allies contend that the way the districts were designed violates the state constitution because the resulting maps so favored Republicans that electoral outcomes and GOP control were predetermined.

A ruling is expected in weeks or months. The losing side is expected to appeal the decision.

The trial came a month after the U.S. Supreme Court ruled in a separate case involving North Carolina’s congressional map that it’s not the job of federal courts to decide if boundaries are politically unfair. But Chief Justice John G. Roberts Jr. also wrote in the decision that state courts could play a role by applying standards set in state laws and constitutions to the question of political gerrymandering, or arranging election districts in ways that gives one party an unfair advantage.

If the judges rule in favor of Democrats and their allies, they could order new district maps for next year’s elections to the state’s General Assembly. The lawmakers who are elected will draw up district maps after the 2020 census that will set the tone for the balance of power in the country’s ninth-largest state for the next decade.


The lobbying group Common Cause, the state Democratic Party and more than 30 registered Democratic voters who sued over the district maps also want judges to define when partisan advantage goes too far and diminishes democracy.

A political scientist testifying for the Republican defendants said the North Carolina districts being challenged fall within the norms of redistricting, which almost always favor the interests of the majority party. The challenged districts are not such extreme outliers that judges should intervene, said University of Texas at Dallas professor Thomas Brunell.

Common Cause lawyer John Cella asked a different expert for the Republican defendants whether he’d tell an 8-year-old that gerrymandering is good for democracy.

“I don’t interact with a lot of 8-year-olds, so I’m not sure about their level of political information,” Brigham Young University political scientist Michael Barber said. “I would probably tell the 8-year-old that there is interesting research in political science that they should read to assess these conclusions, and that when they’re grown up they should take my class.”

Barber also testified that Democrats promote unintentional gerrymandering by clustering around cities in the largely rural state.

The plaintiffs contend in their lawsuit that 95 out of the 170 state House and Senate districts drawn in 2017 violate their free speech and association protections under the North Carolina Constitution. They also say the boundaries violate a constitutional provision stating “all elections shall be free,” because the maps are rigged to predetermine electoral outcomes and virtually ensure Republican control of the Legislature.

A lawsuit seeking to nullify partisan gerrymandering in Pennsylvania that cited a similar provision in that state’s constitution was successful.

Despite a large fundraising advantage during the 2018 cycle and candidates in nearly every legislative race, Democrats could not obtain a majority in either the House or Senate, a failure Democrats and their allies blame on gerrymandering.

North Carolina Republicans accused Democrats of turning to court to take away the Legislature’s redistricting responsibilities and prerogatives. They pointed to testimony this week by a Raleigh elections law attorney who drew election maps during his previous career at the General Assembly as showing Democrats were hypocritical in attacking Republican maps.

Lawyer Bill Gilkeson testified that when he was helping to draw maps favorable to Democrats during the 2017 rewrite he discussed the racial and party composition of districts with Democratic incumbents. But Republicans who dominated the Legislature adopted their own maps and a GOP state senator said Democrats would have done the same thing had they been in power.

Among the evidence the judges will consider are recently uncovered computer records created by Tom Hofeller, a now-dead GOP redistricting guru who helped draw the 2017 legislative maps. Those files — collected by Hofeller’s estranged daughter after his death and shared with Common Cause — “prove beyond a doubt that partisan gain was his singular objective,” plaintiffs attorney Stanton Jones said last week.

Some of Hofeller’s files ended up being used in separate litigation in New York challenging a plan by President Trump’s administration to include a citizenship question on the 2020 U.S. census.

The North Carolina lawsuit marks at least the eighth court challenge of state election district maps since the current round of redistricting began in 2011. The lawsuits resulted in redrawing congressional lines in 2016 and legislative districts in 2017 — both to address racial bias.