What Now? The Aftermath of Common Cause v. Lewis

Andrew Sun, CLS ’21

            After gerrymandering reform efforts met disappointment at the Supreme Court in Rucho v. Common Cause, which held that federal courts did not have enough guidance by the federal Constitution to handle gerrymandering challenges, a glimmer of hope came from a North Carolina state court.[1] A three-judge panel sitting in Wake County, North Carolina ruled unanimously in Common Cause v. Lewis that North Carolina’s Constitution provided sufficient guidance in a gerrymandering challenge and held that state legislative maps were unlawful as against the North Carolina Constitution’s free election, equal protection, freedom of speech, and freedom of assembly clauses.[2] This decision has the potential to serve as a guide for litigants and judges in other states to formulate the legal arguments against gerrymandered state legislative maps, especially in a time when federal courts have shuttered their doors to these challenges.[3]

The specific remedies that the court ordered and the lessons of the decision’s aftermath may also prove to be particularly instructive to litigants and courts in other states seeking to remedy gerrymandered maps.  Below are the remedies discussed in the remainder of the article, although additional remedies were included in the decision.[4]

  • Timeline: The court required the legislature to create new maps within two weeks of the decision and also retained the authority to change scheduled election dates if doing so should become necessary to provide proper relief.[5] The new maps must then be approved by a court appointed expert referee from Stanford University.[6]
  • Election data: Partisan considerations, elections results, and other election data cannot be used in the drawing of the new districts, and intentional attempts to favor voters or candidates of one political party is prohibited.[7]
  • Maps used as starting points: The maps invalidated in the case may not be used as a starting point for the new maps.[8]
  • Incumbency protection: Drafters of the remedial maps are allowed to take steps such that incumbents are not pitted against each other in the same district.[9]
  • Public process: The remedial process must be conducted “in full public view,” which, at a minimum, requires all map drawings to occur at public hearings.[10]

At the time of the writing of this article, the court is reviewing remedial maps passed by both chambers of the North Carolina legislature.[11] Mitch Kokai, senior political analyst at the John Locke Foundation, says that the maps are likely to be approved by both the expert and the court because of strong bipartisan support.[12] PlanScore, a nonpartisan group that analyzes maps nationwide, suggested that the new maps are an improvement over their predecessors.[13]

Yet the redistricting process has not been without controversy. Although the process has taken place with an unprecedented degree of transparency, the method by which the baseline map was chosen and developed upon raised suspicion.[14] The starting map that the legislature worked from was taken from a set of 1,000 maps simulated by Jowei Chen, a political scientist who served as an expert for the plaintiffs challenging the gerrymandered maps.[15] These maps were not drawn in public view, as they were created before the trial as trial evidence.[16] Additionally, during the mapmaking process a private legal team for the GOP shared a link with members of the House of Representatives containing political data for each of Chen’s maps, describing which would be more or less advantageous for GOP candidates.[17] Although the link was quickly shut down, this email still caused a delay in the mapmaking process due to the uncertainty of whether the process was prejudiced as a result of any lawmaker being exposed to the contents of the link.[18]

Some have also raised more general arguments against the court’s remedy. One economist has posited that barring the legislature from using partisan considerations and encouraging them to follow county lines is mathematically likely to produce more skewed districts, against the goal of the court.[19] Others, like Charlotte Senator Jeff Jackson and J. Michael Bitzer, scholar of North Carolina politics at Catawba College, challenge that legislators should not be involved at all in the redrawing process, as they are motivated by their own political interests.[20] A specific concern is that although partisan considerations are not allowed in the mapmaking process, Republicans can still serve their own political interests through the court’s allowance of incumbency protection, since currently most incumbents are Republican.[21]

So far, it seems that the court has successfully compelled the legislature to change their maps, but only time will tell as to whether the decision will improve the rights of voters in North Carolina. Either way, those seeking to challenge gerrymandering in other states ought to keep a close watch on how the aftermath of Lewis unfolds.

[1] 139 S. Ct. 2484, 2507 (2019).

[2] No. 18 CVS 014001, 2019 N.C. Super. LEXIS 56 (N.C. Super. Ct., Wake County Sept. 3, 2019).

[3] See Amber Phillips, Why Democrats’ Big Gerrymandering Win in North Carolina Matters, Washington Post (Sept. 4, 2019), https://www.washingtonpost.com/politics/2019/09/04/how-democrats-win-north-carolinas-redistricting-battle-could-reverberate/; see also Ella Nilsen & Tara Golshan, A North Carolina Court Just Threw Out Republicans’ Gerrymandered State Legislature Map, Vox (Sept. 3, 2019), https://www.vox.com/policy-and-politics/2019/9/3/20848087/north-carolina-court-republican-gerrymander-state-legislature-map.

[4] For a complete description of the court’s remedies, see Lewis, 2019 N.C. Super. LEXIS 56 at *404-420. Other court orders such as compliance with the Voting Rights Act and country grouping requirements have not generated much controversy thus far. As a result, these remedies have been omitted.

[5] Id. at *413.

[6] Michael Wines, In North Carolina, New Political Maps Don’t End Old Disputes, N.Y. Times (Sept. 17, 2019), https://www.nytimes.com/2019/09/17/us/north-carolina-gerrymandering.html.

[7] Lewis, 2019 N.C. Super. LEXIS 56, at *416-17.

[8] Id. at *417.

[9] Id. at *416.

[10] Id. at *418-19.

[11] Brent Van Vliet, New State Legislative Maps Head to N.C. Superior Court for Approval, Daily Tar Heel (Sept. 23, 2019), https://www.dailytarheel.com/article/2019/09/new-ncga-maps-0923.

[12] Id.

[13] Wines, supra note 6.

[14] Will Doran, Did NC Lawmakers Look at Data Banned by Gerrymandering Ruling on Day 1 of Redraw?, Raleigh News & Observer (Sept. 10, 2019), https://www.newsobserver.com/news/politics-government/article234925852.html.

[15] Mark Joseph Stern, Instead of Fixing Their Gerrymander, North Carolina Republicans Are Trolling the Court, Slate (Sept. 10, 2019), https://slate.com/news-and-politics/2019/09/north-carolina-republicans-gerrymander-trolling-court.html.

[16] Id.

[17] Doran, supra note 14.

[18] Id.

[19] See Charles Blahous, Don’t Expect a Revolution from NC Gerrymandering Ruling, E21 (Sept. 13, 2019), https://economics21.org/north-carolina-gerrymandering-ruling-district-maps.

[20] Will Doran, New Political Maps Pass NC Legislature, Will Be Reviewed by Judges Who Ordered Redraw, Raleigh News & Observer (Sept. 17, 2019), https://www.newsobserver.com/news/politics-government/article235159817.html; Wines, supra note 6.

[21] Van Vliet, supra note 11; see also Stern, supra note 15.