Berger reacts to gerrymandering ruling
A panel of federal judges struck down North Carolina’s election districts for U.S. Congress on Tuesday as unconstitutional partisan gerrymanders and gave lawmakers until Jan. 29 to bring them new maps to correct the problem.
The ruling comes in cases filed by the League of Women Voters and Common Cause in North Carolina stemming from maps adopted in 2016 during a special legislative session. It throws a new wrinkle and more uncertainty into the 2018 election cycle in North Carolina a month before candidates were scheduled to file for office.
“We’re enormously gratified on behalf of our clients and all voters in North Carolina that no one will have to endure another congressional election under an unconstitutional map,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, which represented some of the challengers. “The court was clear in demanding a real remedy before the 2018 elections, and we expect the General Assembly to respect that order.”
The judges – James A. Wynn, a Barack Obama appointee to the 4th U.S. Circuit Court of Appeals, and federal district judges W. Earl Britt, a Jimmy Carter appointee, and William L. Osteen Jr., a George W. Bush appointee – were unanimous that North Carolina lawmakers under Republican leadership violated the U.S. Constitution’s equal-protection clause when they drew maps explicitly to favor their party.
“On its most fundamental level, partisan gerrymandering violates ‘the core principle of republican government . . . that the voters should choose their representatives, not the other way around,’” the majority opinion states.
The ruling is the first time federal judges have struck down congressional districts as partisan gerrymanders. A Wisconsin case that was argued before the U.S. Supreme Court involved state legislative districts found to be partisan gerrymanders.
In North Carolina, Wynn and Britt also found that the 2016 redistricting plan designed to give Republicans wins in 10 of the 13 districts also violated the free speech of the challengers by trying to weaken the voices of Democrats with whom they did not agree. Osteen dissented from his colleagues on that point, but agreed overall that the maps were unconstitutional.
In the words of Rep. Lewis
The lawmakers, Wynn wrote in the opinion for the majority, “do not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. Nor could they. The Republican-controlled North Carolina General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on ‘political data’ — past election results specifying whether, and to what extent, particular voting districts had favored Republican or Democratic candidates, and therefore were likely to do so in the future — to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the state’s congressional districts.”
During the legislative session in which the maps were drawn, Rep. David Lewis, a Harnett County Republican who has shepherded the state’s recent redistricting efforts, announced that the maps were drawn to give Republicans a large majority. Lewis made his comments after the federal court found congressional districts drawn in 2011 to include unconstitutional racial gerrymanders. In announcing the new maps, Republican lawmakers stated that the race of voters would not be considered in the design of the new districts.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” Lewis said at the time.
At the time, the courts had allowed for some partisan consideration in redistricting, which happens every 10 years after the census shows population shifts. But voting rights organizations have pushed for changes to that, saying modern mapmaking technology has allowed candidates for elected office to choose their voters under new redistricting plans instead of letting voters choose who represents them.
The comment by Lewis has provided the underpinnings for a lawsuit that sets North Carolina apart from other partisan gerrymander challenges. The Wisconsin case before the Supreme Court relies more heavily on a proposed statistical formula called “the efficiency gap,” which counts the number of votes wasted when voters are shifted into districts where their votes won’t matter, either because their party’s candidate can’t win or is already sure to win.
The North Carolina challengers argue, like the challengers in Wisconsin, that the maps drawn discriminate against Democratic candidates and voters because of their political beliefs. They say the lawmakers who either “packed” them into a single district or “cracked” their district into multiple districts to weaken their influence are robbing them of free speech and equal protection rights because their opinions differ from the lawmakers in power.
Republicans contend that such arguments and formulas are not for the courts to decide – that redistricting is a legislative duty in North Carolina.
The lawmakers, Wynn wrote, “do not argue – and have never argued – that the 2016 Plan’s intentional disfavoring of supporters of non-Republican candidates advances any democratic, constitutional, or public interest. Nor could they. Neither the Supreme Court nor any lower court has recognized any such interest furthered by partisan gerrymandering – ‘the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.’”
Appeal to U.S. Supreme Court coming
News of the ruling brought quick applause from Democrats and swift criticism from Republicans.
Legislative leaders plan to appeal to the U.S. Supreme Court and ask for a stay, according to Mitchell County Republican state Sen. Ralph Hise, who along with Lewis has led redistricting efforts in the legislature.
“The timeline for redistricting is unreasonable,” Hise said.
Eric Holder, who served as attorney general under Obama and now is chairman of the National Democratic Redistricting Committee, said in a statement that the ruling “was just the latest example of the courts telling state legislators in North Carolina that citizens should be able to pick their representatives, instead of politicians picking their voters. It’s long past time for the legislature to produce fair maps that represent the diverse communities of North Carolina.”
“Republicans comprise 30 percent of registered voters in North Carolina, yet they crafted a congressional map that would ensure Republican success in 10 of 13 districts, or 76 percent,” U.S. Rep. G.K. Butterfield, a Democrat from Wilson, said in a statement. “The Republicans made this case relatively simple when they admitted in court that the congressional map was drawn for partisan political advantage.”
U.S. Rep. David Price, a Democrat from Chapel Hill, also praised the ruling. “No state has suffered more than North Carolina from extreme partisan gerrymandering by Republicans – both after the 2010 census and in 2016, after their first map was ruled an unconstitutional racial gerrymander. But the current map is still designed to produce a 10-3 Republican advantage among congressional districts, in a state that is equally divided politically,” Price said in a statement in which he described the ruling as one with “national implications.”
‘Partisan war on North Carolina Republicans’
Dallas Woodhouse, executive director of the North Carolina Republican Party, sent out a tweet criticizing Wynn. “It is incredibly disappointing activist Judge Jim Wynn is waging a personal, partisan war on North Carolina Republicans,” Woodhouse said on Twitter.
Wynn has been on a panel of federal judges that has ruled against the state in other redistricting cases that found districts to be unconstitutional racial gerrymanders and who wrote a critical opinion striking down a 2013 election law overhaul and voter ID law, saying it with near “surgical precision” targeted African-American voters, who often support Democrats.
Woodhouse added to his tweet later: “It is Now very clear that Judge Wynn has decided that @ncgop should not be allowed to draw election districts under any circumstances under any set of rules. This is a hostile takeover of the #NCGA and legislative bodies across the U.S.”
North Carolina Democratic Party Chairman Wayne Goodwin called the ruling a “major victory for North Carolina and people across the state whose voices were silenced by Republicans’ unconstitutional attempts to rig the system to their partisan advantage.”
Staff writer Lynn Bonner contributed to this story.