As Arnold Schwarzennager and Dave Daley recently pointed out, nearly 60 million Americans live under the rule of a state legislature controlled by a party that did not win the majority vote, illustrating the prevalence of gerrymandering in America. On that topic, last week, a North Carolina state court struck down district maps drawn by the state legislature as unconstitutional gerrymanders.* Unanimously, the court agreed that these lines were drawn with “surgical precision” to keep Republicans in power, writing, “It is not the will of the people that is fairly ascertained through extreme partisan gerrymandering...Rather, it is the will of the map drawers that prevails."
The North Carolina General Assembly redrew the maps to conform to court-issued guidelines. In doing so, the mapmakers could not consider past election results when creating districts, could not hire outside experts without court approval, had to abide by traditional criteria such as compactness and contiguity, and had to perform their work publicly on a screen visible to both legislators and the public showing the mapwork.
Notably, Republican lawmakers have announced that they will not be appealing this decision. The new maps will be in effect for the 2020 election, when North Carolina voters select their governor, as well as the representatives who will be drawing the next set of maps.
North Carolina’s constitution specifies, “All elections shall be free.” The court interpreted this to mean "that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people." As such, partisan gerrymandering inherently violates the people’s freedom to govern. Additionally, reading the state constitution to provide more protection than the U.S. Constitution, the court found that the gerrymandering violated the state constitution's equal protection and freedom of speech and assembly clauses.
While the Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims are not justiciable in federal court, the North Carolina decision illustrates an alternative remedy in state courts. Combined with a 2017 Pennsylvania decision, these cases highlight a state constitution-centric path to fighting gerrymandered districts. Unlike the US Constitution, almost every state constitution contains an affirmative right to vote, with over half of these constitutions containing phrases such as “free,” "free and equal," or "free and open." Significantly, both North Carolina and Pennsylvania’s consitutions contained such phrases, providing a model for other courts to construe their state constitution to protect against partisan gerrymandering. Ultimately, this decision not only provides a model for other states to follow, but also could create a state-constitution challenge to North Carolina’s congressional districts.
*Note: Interestingly, the North Carolina court adopted the test used by district courts in Michigan, North Carolina, Ohio, and Wisconsin (and cited by Justice Elena Kagan in her dissent): (1) intent, (2) effects, and (3) causation.