North Carolina Court Strikes Down Gerrymander, Citing Smoking Gun Evidence in the Hofeller Files – By Mark Joseph Stern (Slate) / Sept 3 2019
A unanimous panel found that the state’s partisan gerrymander violates North Carolinians’ rights.
A North Carolina court struck down the state’s legislative maps on Tuesday, ruling that the districts amounted to a partisan gerrymander in violation of the state constitution. Republican legislators have indicated that they will comply with the sweeping, emphatic decision. But even if they appeal, it seems likely to be upheld by the North Carolina Supreme Court. It is also essentially insulated from review by the U.S. Supreme Court. There is thus a strong probability that the state’s 2020 legislative elections will be held under fair maps, potentially breaking state Republicans’ stranglehold on power.
Tuesday’s ruling in Common Cause v. Lewis is, in many ways, the most comprehensive judicial opinion about partisan gerrymandering ever written. Issued by a unanimous three-judge panel of the Wake County Superior Court, Lewis is both an exhaustive exploration of how partisan gerrymandering works and a scathing denunciation of its constitutional harms. The court had unprecedented access to the gerrymandering process thanks to the Hofeller files—a vast trove of information left behind by Thomas Hofeller, the GOP’s gerrymandering guru. Among other things, Hofeller helped North Carolina Republicans draw the state House and Senate maps in place today. After he died, his daughter turned over his materials to Common Cause, the organization suing to strike down these maps. Common Cause provided them to the court, and the court has relied on them heavily to illustrate exactly how Republicans rigged North Carolina’s legislative elections.
The current legislative maps were drawn in 2017, after the U.S. Supreme Court struck down the previous maps as an unlawful racial gerrymander. Republican legislators provided Hofeller with election data and instructed him to preserve the GOP’s supermajority. They later admitted under oath that a key goal of the maps was to entrench Republican power. Hofeller did as instructed: Analyzing past elections, he created a “partisanship formula” to gauge the advantage that each district would give to Republicans. He crafted as many safe GOP districts as possible—chopping up cities, counties, and even neighborhoods in the process. He even developed a color-coded “partisanship score” to confirm that each district maximally benefited Republicans.
Hofeller’s overall goal was to pack as many Democrats into as few deep-blue districts as possible, then distribute the remaining Democrats into safe Republican districts. Through this “packing and cracking,” Hofeller built a GOP “firewall” that preserved Republicans’ legislative supermajority even when Democrats won a majority of the statewide vote. At trial, experts testified that Hofeller’s maps were more favorable to Republicans than roughly 99.99 percent of maps generated by an algorithm using nonpartisan redistricting factors.
The court devoted nearly 300 pages to this kind of analysis, proving two things over and over again: First, Hofeller gerrymandered the districts with the intent to discriminate against Democrats, and second, that he succeeded, drawing maps that heavily diluted Democratic votes. None of that would matter, however, if courts could not hear partisan gerrymandering claims in the first place. And in June’s Rucho v. Common Cause, the U.S. Supreme Court ruled that federal courts could not decide gerrymandering cases because they are “beyond the competence of the federal courts.”
But the majority noted in Rucho that its decision did not “condemn complaints about districting to echo into a void” and cited state court decisions invalidating partisan gerrymanders under state constitutions. The U.S. Supreme Court has no authority to review state court decisions rooted in state constitutions that do not implicate the federal Constitution. So Rucho seemed to suggest that state courts are free to provide greater protections against partisan gerrymandering—based on their own states’ constitutions—than federal courts can.
And that’s exactly what the Wake County Superior Court did here. The panel, which consisted of two Democrats and one Republican, found that extreme partisan gerrymandering violates three separate provisions of the North Carolina Constitution.
First, the court concluded that the practice “strikes at the heart” of the free elections clause, which states: “[A]ll elections shall be free.” This clause, the court found, means “that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” Partisan gerrymandering is a clear violation of that guarantee. “Elections are not free,” it explained, “when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power.”
Second, the court held that extreme partisan gerrymandering violates the North Carolina Constitution’s equal protection clause. This clause provides greater protection for voting rights than its federal counterpart. It safeguards “the fundamental right of each North Carolinian to substantially equal voting power.” Yet Hofeller’s maps were designed to dilute Democratic votes and bar Democrats from obtaining a legislative majority. “There is nothing ‘equal’ about the ‘voting power’ of Democratic voters when they have a vastly less realistic chance of winning a majority in either chamber,” the court explained.
It is quite easy for courts to determine when a gerrymander has robbed citizens of their fundamental rights.
Finally, the court found that the gerrymandered maps violate the state constitution’s guarantees of freedom of speech and assembly. “Voting for the candidate of one’s choice and associating with the political party of one’s choice are core means of political expression,” the court noted. Indeed, the act of voting itself constitutes “expressive activity” that is “protected by North Carolina’s Freedom of Speech Clause.” Moreover, “banding together with likeminded citizens in a political party is a form of protected association,” as is “expenditure of funds in support of candidates.”
Hofeller’s gerrymander infringes on all of these protected rights. His maps constitute “viewpoint discrimination” against Democrats, “burden[ing] their speech by making their votes less effective” because of their support for Democratic candidates. Hofeller “deliberately minimized the effectiveness of the votes of citizens with whom they disagree.” His maps also “retaliate against voters” on the basis of their protected speech, diluting their votes because they engaged in political expression and association to support Democrats.
North Carolina’s extreme partisan gerrymander didn’t just hurt voters; it also harmed the Democratic Party’s “associational rights.” Hofeller’s maps hobbled the party’s “ability to translate its effort, funds and enthusiasm into a meaningful opportunity to gain majority control of the General Assembly.” And they hampered the party’s right to make “campaign donations and expenditures,” forcing it to “spend more money than it would need to under nonpartisan plans,” and making that money “less effective than it would be under nondiscriminatory maps.” These burdens, the court concluded, are intolerable under the state constitution, and the judiciary has a duty to halt this infringement of citizens’ most basic rights.
The court gave the General Assembly two weeks to draw new legislative maps using fair, nonpartisan criteria. It ordered legislators to do so “at public hearings, with any relevant computer screen visible to legislators and public observers.” If the assembly fails to provide satisfactory maps, the court will appoint a special master to draw districts that comport with its decision.
Lewis is a breathtaking decision for voting rights advocates. It vindicates every constitutional theory that opponents of partisan gerrymandering have put forward. And it repudiates Chief Justice John Roberts’ opinion in Rucho, which insisted that courts are ill-equipped to measure and remedy partisan gerrymanders. In reality, as Lewis illustrates, it is quite easy for courts to determine when a gerrymander has robbed citizens of their fundamental rights. The Wake County Superior Court appears to have a much better understanding of how political redistricting works—and how it can be fixed—than the U.S. Supreme Court’s conservative majority.
Republican leaders’ plan to accept the ruling is a surprising but logical concession; their odds of triumph are slim. There are currently six Democrats and one Republican on the North Carolina Supreme Court—including Justice Anita Earls, who litigated against gerrymanders before joining the bench. The Democratic majority would likely affirm the superior court’s decision and demand new legislative maps for the 2020 election. And it is highly improbable—though not impossible—that the U.S. Supreme Court would intervene in a dispute rooted solely in the North Carolina Constitution.
Put simply, all roads lead to new legislative maps, giving Democrats a real chance at winning majorities in the state house and senate. Tuesday’s decision all but ensures that North Carolina will, at long last, hold free and fair legislative elections in 2020.
Protesters attend a rally for fair maps in NC electoral districts on March 26 in Washington. Tasos Katopodis/Getty Images
