In a unanimous decision, a three-judge panel of the NC Superior Court ruled in Common Cause v Lewis that nearly half of North Carolina’s state legislative districts were unconstitutional partisan gerrymanders and will have to be redrawn before the 2020 primaries. In fact, the court gave the General Assembly just two weeks to present new maps. The ruling preserved the current set of multi-county clusters, meaning that any changes in the maps would be relatively limited in scope.
Carolina Journal has a useful summary, including lists of the counties affected by the ruling.
At the moment, I am more interested in the legislative defendants’ decision not to appeal the ruling. Senate Senate President Pro Tempore Phil Berger announced that decision in a media release soon after the ruling was announced:
Statement from Sen. Phil Berger on the Common Cause v Lewis decision
There are a couple of likely reasons for the decision not to appeal. The first is that, as I previously noted, the NC Supreme Court is dominated by Democrats who could have imposed a more extreme decision. Also, by keeping this out of the Supreme Court, the precedent established in the case is more limited.
Perhaps more importantly, the lower court specifically prohibited the use of partisanship in drawing the districts while preserving the other criteria traditionally imposed on restricting in North Carolina (page 355 of the ruling):
Election Data. Partisan considerations and election results data shall not be used in the drawing of legislative districts in the Remedial Maps. [Emphasis in the original.]
That part of the ruling prevents the use of partisan data to help Democrats impose a proportional representation-style requirement like the one made by a court-appointed special master in Pennsylvania. The Pennsylvania plan was specifically designed to overcome the natural tendency of Democratic-leaning voters to pack themselves into relatively small clusters by contorting congressional districts to spread those voters out more evenly:
On Monday, the Pennsylvania Supreme Court adopted a new congressional map for 2018 that’s close to a best-case scenario for Democrats. The map, drawn by a court-appointed special master, doesn’t just undo the gerrymander that’s produced a 13-5 seat GOP edge since 2012. It goes further, actively compensating for Democrats’ natural geographic disadvantage in the state.
That kind of judicial gerrymandering will not be available to Democrats in North Carolina under Common Cause v Lewis. With partisanship not considered, Democratic gains in the state legislature under the next round of redistricting will be relatively modest. That is because it requires an active consideration of partisanship for them to overcome political geography. For example, a completely nonpartisan drawing of congressional districts in North Carolina would likely create a 8-5 split favoring Republicans, not the 7-6 split (or majority Democratic 7-6 split) Democrats would prefer.
Considering what awaited them had the case gone to the NC Supreme Court, and that the requirement of partisanship not being consider increases the odds that Republicans will be able to hold on to their majority in the 2020 state legislative elections, their quick capitulation to the lower court’s ruling makes perfect sense.
