Common Cause v. Lewis and the Will to Power

• Fairness in legislative map drawing is not the primary motivation for the lawsuit
• The plaintiffs’ real motivation is access to power and more Democrats in the state legislature

Those interested in the legal fight over redistricting in North Carolina have rightly been focused on Common Cause v. Rucho, which is scheduled for oral arguments in the U.S. Supreme Court on March 26. For several reasons, partially covered by an amicus curia brief from the Speaker of the Pennsylvania House of Representatives, there is reason to believe that the Supreme Court is likely to defer to the constitutional prerogative of legislators on political decisions regarding redistricting.

The case that is more likely to result in a judicial intervention on how districts are drawn in North Carolina is working its way through North Carolina’s state judicial system with an initial July 15 trial date.

While the two lead plaintiffs in Common Cause v. Lewis are the eponymous liberal organization and the North Carolina Democratic Party, the list of plaintiffs also includes 22 registered voters from across the state. While the individuals added to the lawsuit were no doubt selected to be as sympathetic as possible, a quick review of the list (paragraphs 9-30 of the complaint) suggests a variety of reasons for their participation:

• Eighteen are Democrats and four are unaffiliated. All of them consistently voted for Democrats.
• While 15 mentioned both their NC House and NC Senate districts in the complaint, the other seven only mentioned one of their districts. Presumably, they have no complaint about their other district.
• While 16 claimed to be in non-competitive districts (which I define as the winning candidate getting more than 55 percent of the vote in 2018 unless the complaint specifies that it was competitive or not), four were in competitive districts and the two others were in one competitive and one non-competitive district.
• Eight noted that Republicans won in their districts while 11 stated that Democrats won. Three of those plaintiffs were represented by one Republican and one Democrat.

So being in a non-competitive district is bad, but so is being in a competitive district. Being represented by Democrats is unfair, but so is being represented by Republicans or being represented by one Democrat and one Republican. This diversity suggests that, while they are named as plaintiffs in the context of their individual legislative districts, their real complaint is with Republicans winning more seats in the General Assembly in the 2018 election.

The plaintiffs come from all over the state. However, eight of them come from two counties: Mecklenburg and Wake. Their inclusion is curious, given that legislative districts are required to divide counties as little as possible by Article II, sections 3 and 5 of the North Carolina Constitution. In the 2018 election, Democrats won all 15 of the General Assembly seats located wholly in Wake County (a seat that includes northern Wake county and all of Franklin County was won by a Republican) and 16 of the 17 seats in Mecklenburg County. It would be nearly impossible to devise districts in those counties in which Democrats could do better than they already did.

Source: Common Cause v Lewis

The real goal of the two primary plaintiffs is also apparent: electing more liberals and Democrats to the General Assembly. In paragraph 7 of the complaint, Common Cause states that the current districts limit their ability to convince voters to “vote in state legislative races.” However, turnout in the 2018 election was near record levels despite there being no major statewide races on the ballot. The rest of the paragraph reveals their true complaint: the new maps “burden Common Cause’s ability to communicate effectively with legislators and to influence them” to pass laws according to the group’s policy preferences.

Common Cause appears to be primarily concerned with their own access to the levers of power in state government.

The main complaint from the North Carolina Democratic Party in paragraph 8 is refreshingly blunt by comparison. It plainly states, after listing a host of grievances, that what it wants is to have districts that give Democrats a better chance of winning majorities in the general assembly. According to the complaint, the maps “frustrate” the ability of the NCDP to elect “candidates who will pursue policies favorable to NCDP members,” and the NCDP laments that the maps “make it impossible for Democrats to win a majority in either chamber of the legislature.”

Of course, winning majorities in the legislature was also their goal over the century-and-a-half that they largely had complete control over the redistricting process. The current Republican majority did not initially emerge in 2010 because of “fair maps”; it emerged through voters pushing Republicans into seats drawn by Democrats to be won by Democrats. Once Republicans obtained their majorities, they got to draw the maps. It is those maps that are the subject of the current lawsuit.

So Common Cause v. Lewis is ultimately not about a quest for fairness; it is about a quest for power. There is nothing new about parties and interest groups seeking more power, but let’s not pretend that it is something else.