The court held on Monday that North Carolina’s congressional map violates Article I, the First Amendment and the equal protection clause of the 14th Amendment.
A three-judge panel reached an identical conclusion in January, but after the U.S. Supreme Court ruled in two separate partisan gerrymandering cases, it sent the North Carolina case back to the lower court for further consideration.
In June the Supreme Court said in Gill v. Whitford that plaintiffs in partisan gerrymandering cases must show they suffered an injury in the districts where they live. It asked the North Carolina court to consider whether the plaintiffs in the case met those conditions, and on Monday the court said that it did.
“We conclude that, under the test set forth in Gill, at least one Plaintiff registered to vote in each of the thirteen districts in the 2016 Plan has standing to assert an Equal Protection challenge to each of those districts,” Judge James Wynn, who sits on the U.S. Court of Appeals for the 4th Circuit wrote in an opinion that was joined by Senior U.S. District Judge William Earl Britt. “In particular, such Plaintiffs introduced evidence establishing that each of their districts is ‘packed or cracked’ and, as a result, that their votes ‘carry less weight than [they] would carry in another, hypothetical district.’”
“We further conclude that Gill did not call into question — and, if anything, supported — this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment,” Wynn continued.
The court said the map violated the 14th Amendment because it treated voters differently, depending on their political preferences. The panel also said the map violated the First Amendment because it made it more difficult for politically engaged groups and voters with certain political beliefs to elect their preferred candidates. The map runs afoul of a provision of Article I of the Constitution, the court said, because it gives the North Carolina legislature too much power in choosing who sits in the U.S. House. Article I says that the members of the House of Representatives shall be chosen by “the people.”
The decision is significant because North Carolina is one of the most severely gerrymandered states in the country, with Republicans consistently controlling 10 of the state’s 13 congressional seats since 2012. Gerrymandering reform advocates believe the case presents one of the best opportunities for the U.S. Supreme Court to place a limit on partisan gerrymandering because the evidence of Republicans’ intent to gerrymander is so clear. A key Republican involved in drawing the congressional map in 2012 said he wanted a 10-3 GOP delegation because he did not think it was possible to draw one that was 11-2 in favor of Republicans.
“Although North Carolina’s loud and proud admission that legislators drew districts for partisan advantage is unusual, the practice is universal when politicians are in charge,” Kathay Feng, the national redistricting director at Common Cause, which brought the suit on behalf of the North Carolina voters, said in a statement. “Until we prohibit partisan gerrymandering, a true representative democracy will remain out of reach and the voices of all Americans will continue to be silent.”
The court highlighted that the current North Carolina congressional map has been in place for six years and notably left open the possibility of implementing a new congressional map for this year’s midterm elections. Noting that North Carolina Republicans have dragged their feet in drawing previous court-ordered fixes to the map, the court declined to say whether it would afford lawmakers the opportunity this time around but said it would give lawmakers until Sept. 17.
Republicans are expected to appeal to the U.S. Supreme Court. With Justice Anthony Kennedy’s retirement, there is a 4-4 split between conservative and liberal justices, meaning the lower court’s ruling could remain in place, wrote Rick Hasen, an election law expert and a professor at the University of California, Irvine.