N.C. Supreme Court could soon consider gerrymandered election maps

Four cases related to gerrymandered election districts are making their way through the North Carolina court system and could soon end up at the state Supreme Court. One case could limit the authority of a gerrymandered legislature to amend the state constitution, while the other three seek to undo new legislative and congressional districts that unfairly favor Republicans.

In 2019, North Carolina court struck down gerrymandered congressional and legislative districts for violating voters' rights under the state constitution, and three of the lawsuits over the recently drawn maps are asking them to do that again. Experts have found that the new maps are biased toward the GOP. 

One of the lawsuits is actually a continuation of the case challenging the state's previous congressional districts. Pointing to GOP bias in the new maps, the plaintiffs argue that legislators ignored the court's ruling that partisan gerrymandering is unconstitutional. Their brief noted that legislators divided the state's three largest counties into three districts each and packed other Democratic communities into "a handful of districts." The map is expected to elect 10 Republicans to represent the closely divided state's 14 congressional districts. 

The North Carolina League of Conservation Voters has filed a lawsuit challenging both the congressional and legislative districts for the same reasons. LCV's Elizabeth Redenbaugh charged the GOP-controlled legislature with usurping voters' authority and "rigging the maps … to keep themselves in power."

And another lawsuit filed by voting rights groups argues that the legislature's refusal to use data on voters' race made it impossible for them to ensure compliance with the Voting Rights Act of 1965. It cites a 2002 precedent in which a GOP majority on the North Carolina Supreme Court struck down a Democratic legislature's districts for violating the state constitution. 

The 2002 ruling laid out a new process for redrawing legislative districts. The first step is to draw districts that comply with the VRA, which prohibits election maps that dilute the political power of communities of color. Republican legislative leaders have said they used no racial data when drawing election districts, and voting rights advocates and Democratic legislators have pointed out that means the process had no way of ensuring compliance with the VRA.

In the last redistricting cycle following the 2010 census, the U.S. Supreme Court cracked down on racial gerrymandering in North Carolina and other Southern states. The Court faulted lawmakers for establishing arbitrary goals of a certain percentage of Black voters in districts, without doing the math to determine what percentage was needed to avoid diluting Black political power. 

But the U.S. Supreme Court now has a 6-3 conservative majority that has narrowed the reach of the VRA. This is also the first redistricting cycle since the U.S. Supreme Court's 2013 ruling striking down a provision of the VRA that required federal "preclearance" of election maps in states with a history of voting discrimination. As Allison Riggs of the Southern Coalition for Social Justice, which represents the plaintiffs in one of the North Carolina lawsuits, told Ari Berman at Mother Jones, "The South is burning. What we're seeing is beyond our worst nightmares in terms of how bad these processes and outcomes are for voters of color."

All of the new North Carolina lawsuits ask state courts to act quickly, as they did in 2019. Voting rights advocates had sought to postpone next year's March primary to allow more time to finalize the maps, but this week Wake County Superior Court Judge Graham Shirley declined their request, saying he couldn't act until the districts were declared unconstitutional. SCSJ filed its lawsuit to delay the election when it became clear that legislators weren't using racial data, before the legislature had approved the districts.

Shirley is one of three judges appointed by state Supreme Court Chief Justice Paul Newby, a Republican, to hear the redistricting lawsuits. The panel, which includes two Republicans and one Democrat, will hold its first hearing on Friday, Dec. 3. Shirley said the panel would issue its decision by Monday, Dec. 6, when candidates can begin filing to run in next year's primary. 
At that point the case could be appealed to the Republican-controlled North Carolina Court of Appeals, or it could go straight to the state Supreme Court, which has a 4-3 Democratic majority.

After legislators redrew the districts, they adjourned with an agenda for January that includes the potential for further redistricting under court order. Their agenda also includes considering impeaching judges who rule against them in lawsuits, including one that seeks more equitable funding for public schools. 

The court's conflicts of interest 

Dallas Woodhouse, the former head of the state GOP who now works for the conservative John Locke Foundation think tank, has proposed that Republicans in the state House impeach high court justices who seek to enforce judicial ethics rules by requiring colleagues with conflicts of interest to sit out an ongoing lawsuit challenging the gerrymandered legislature's authority. Before the state Supreme Court can hear any of these lawsuits, it must wrestle with conflict-of-interest issues.

The justices are now facing the question of whether their colleague Phil Berger Jr. can hear lawsuits against his father, Senate President Pro Tem Phil Berger, who played a major role in shaping the new election maps. The question has arisen in a lawsuit challenging the gerrymandered legislature's authority to amend the constitution to include a voter ID mandate and a lower cap on state income taxes. Judicial ethics rules require recusal in cases involving a judge's relatives. 

The state NAACP, which filed the lawsuit, asked the court to disqualify Justices Berger and Tamara Barringer, a former GOP legislator who voted for the amendments at issue. The court asked the parties to the lawsuit a series of questions about how to handle motions to disqualify, including whether the individual justice with an alleged conflict of interest should make the final decision on recusal. The NAACP argued the court should use a transparent process in which the final decision doesn't rest with an individual justice. 

Thirteen professors who teach constitutional law in North Carolina filed a brief arguing the court must disqualify Berger and Barringer to protect the NAACP's right to "an impartial tribunal." The professors also rejected the idea that judges have a right to hear every case, even "if some inescapable conflict of interest would compromise his or her impartiality." They argued that any other rule would leave recusal to "a judge's whim."

The Brennan Center for Justice, which advocates for stronger judicial ethics rules nationally, noted that polls show declining confidence in the impartiality of judges. "If actual or perceived bias is not addressed by transparent recusal procedures, public confidence in the North Carolina judiciary's ability to provide fair resolution of the people's legal affairs will diminish," it warned. 

However, North Carolina Republican legislators argue that allowing a majority of justices to enforce ethics rules by disqualifying a colleague would be perceived as a political move. Three former justices, all conservatives, argued in a brief that having the court disqualify a justice would depart from decades of "unbroken" tradition. But the NAACP noted that when legislators filed a motion to disqualify Justice Anita Earls from the 2019 gerrymandering litigation because of her former role as an attorney with the SCSJ, they asked that Earls "be recused" and argued she "should not participate" — phrasing that implied the court as a whole would decide.

The legislative defendants recently asked that, if the court decides to handle motions to disqualify collectively, it disqualify Earls. They note that she represented the NAACP in a federal racial gerrymandering lawsuit several years ago and that her arguments in that case were similar to the claims in the new NAACP lawsuit. Earls had argued that the "authority of the legislature is called into question" when lawmakers have been elected in unconstitutional districts. 

The new lawsuit argues that, after federal courts ruled for the NAACP in Earls' case, lawmakers lost some of their authority to put constitutional amendments on the ballot. Superior Court Judge Bryan Collins struck down the amendments in 2019, finding that the legislature had "lost its claim to popular sovereignty" when federal courts affirmed that its districts were illegal. 

The North Carolina Court of Appeals overturned Collins' ruling last year. Judge Reuben Young, a Democrat, dissented and argued, "Only a legislature formed by the will of the people, representing our population in truth and fact, may … amend or alter the central document of this state's laws."