Common Cause v. Lewis: same dog barking up a different tree

• Common Cause v. Lewis is based on a dubious claim for “fair” legislative districts
• Plaintiffs are trying to stretch clauses of the NC Constitution beyond anything established by precedent
• The case will end up in the NC Supreme Court, where Democrats enjoy an advantage

As I wrote just after the U.S. Supreme Court’s ruling in Rucho v Common Cause, the struggle over redistricting in North Carolina is far from over.

The next part of that struggle began last Monday, July 15, in a hearing before a three-judge panel of the Wake County Superior Court that is expected to last two weeks. While the plaintiffs’ claim that the North Carolina Constitution prohibits partisan gerrymandering is dubious, there is a good chance that the state Supreme Court will eventually agree with them.

 

What is “fair?”

The Democratic Party and the progressive advocacy organization Common Cause are the primary plaintiffs in this lawsuit. They also added several individuals who tend to vote Democratic in districts spread across the state. They have requested in their complaint that the judges “invalidate the 2017 Plans and order that new, fair maps be used for the 2020 elections (page 2).”

Given that the North Carolina Constitution does not specify what a fair map would look like, or even that fairness in terms of partisanship is required when drawing district maps, what do the plaintiffs mean?

Perhaps fairness means that district maps should be nonpartisan. The plaintiffs spend a great deal of effort documenting that partisanship was a factor in drawing the legislative districts currently used in North Carolina. They use statistical measures such as the troubled “efficiency gap” to demonstrate that legislators in the General Assembly used partisan consideration when drawing maps. Of course, the defendant legislators never denied that partisanship was a consideration and further assert that the NC Constitution allows it (Legislative Defendants Answers, page 4):

The North Carolina Constitution allows the General Assembly to consider partisan advantage and incumbency protection in the application of its discretionary redistricting decisions.

The North Carolina Constitution specifies four requirements for state legislative districts: roughly equal population, contiguous, counties not divided (subject to districts being of roughly equal population), and only drawn once every 10 years. There are no other requirements directly mandated by the state constitution.

So, if partisan considerations are not directly prohibited by the North Carolina Constitution when drawing district maps, what is the basis for Common Cause and the Democratic Party’s lawsuit?

 

Stretching the North Carolina Constitution beyond recognition

The plaintiffs claim that three portions of the North Carolina Constitution: the Equal Protection Clause (Article I, Section 19), the Free Elections Clause (Article 1, Section 10), and Article 1, Sections 12 and 14, the Freedom of Assembly and Free Speech clauses ban using partisan considerations in redistricting by implication.

The Equal Protection Clause states, in part, “No person shall be denied the equal protection of the laws.” However, partisan affiliation is not a suspect class, making it more difficult for the plaintiffs to use that clause as the basis for making partisan considerations in redistricting unconstitutional. In addition, reading pages 60-63 of the complaint reveal that the plaintiff’s concern is not with being personally discriminated against by the North Carolina government (for which they do not present evidence) but with greater access to power in the General Assembly.

Article 1, Section 10 states, in its entirety, that “All elections shall be free.” The only case that the plaintiffs refer to in relation to the Free Elections Clause of the North Carolina Constitution is League of Women Voters v. Commonwealth. That 2018 case resulted in the Pennsylvania Supreme Court drawing maps that boosted the political fortunes of Democrats. So why did the plaintiffs only refer to a case from Pennsylvania when arguing a case based on the North Carolina Constitution? The reason is that the two cases that have been decided based on that clause had nothing to do with redistricting. In the first case, the North Carolina Supreme Court ruled that a voter could not be required by oath to support a candidate from a particular party as a condition for allowing that voter to change party affiliation. In another case, a U.S. District Court found that a requirement for a high number of signatures to get on a local ballot violated, among other things, the Free Election Clause of the NC Constitution by creating too great a burden to getting on the ballot. The thing that unites those cases is that they struck down laws that limited voters’ actions. While Democratic voters may not like the results of elections in their districts, they are free to vote as they wish.

 

The same faulty logic pervades the claims under the Freedom of Assembly and Free Speech clauses. Once again, the plaintiffs are claiming that the plaintiff voters not getting the results that they want in their legislative districts is tantamount to denying them freedom of speech or assembly. However, they are still fully free to organize, protest, and say what they wish. Likewise, the Democratic Party is still free to organize and raise money for itself. On that later point, the party raised more than three times as much money in 2018 as it did in 2012 (the first election year under the 2011 redistricting plan), hardly the performance of an organization that has been crippled by redistricting.

No matter how people may feel about partisan gerrymandering, there is nothing in the North Carolina Constitution that prohibits it. The courts simply do not have a place in settling such political questions.

 

The case will end up in friendly territory for Democrats

No matter what happens in the Wake County Superior Court over the next two weeks, this case will be considered by the North Carolina Supreme Court in time to affect the 2020 elections.

There is currently a 6-1 Democratic majority on the court. That majority includes Anita Earls, who had previously worked at a legal activist on similar cases in coordination with several organizations. However, even if Earls does recuse herself based on her past relationships, the remaining partisan balance on the court certainly increases the chance for success when one of the plaintiffs is the Democratic Party of North Carolina. Judges “often favor their own party” when they get involved in drawing districts.

(That observation is not meant to impugn any members of the court. However, research has found that judges’ feelings about litigants influence their decisions, likely due to motivated cognition. While the relationship between partisanship and judicial decisions is small, it is real.)

So, regardless of the merits of the case, Republican leaders should be concerned that they will eventually be arguing before a state Supreme Court with such a one-sided partisan tilt. Progressives know this and their comments regarding the case and proposed changes to redistricting have taken the tone of ransom demands:

No, no one is going to jail for any gerrymandering-related behavior – at least not yet – but there is something that defendants in both situations have in common: complete power to end the litigation…

… We didn’t want to sue the state. We’d be happy to dismiss the lawsuit. What’s more, all legislative leaders need to do to make such a thing happen is to bow to the inevitable and pass genuine redistricting reform legislation…

Several bills changing how redistricting is done in North Carolina have been proposed in the General Assembly. While some of those proposals are just plain bad, others are more practical and have attracted bipartisan support.

I expect political reality, not the merits of the case in Common Cause v. Lewis, will eventually translate into serious consideration of some form of redistricting reform by the General Assembly in the near term.