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This year's major lawsuits and court cases on redistricting and gerrymandering

The N.C. Supreme Court sits in Raleigh on Aug. 26, 2023.

This year, partisan gerrymandering became effectively legal in North Carolina with the Harper III decision in the N.C. Supreme Court. Now, the N.C. General Assembly can draw maps without review of the state supreme court.

The Harper v. Hall series took the main stage in N.C. politics with the third case in the series, Harper III, being decided this year. 

In Feb. 2022, the N.C. Supreme Court found in Harper I that the maps for congressional districts, drawn by Republican legislators, had an extreme GOP advantage. The court then ordered the redrawing of the maps.

Later, in Dec. 2022, court ruled in Harper II that the N.C. Senate maps were also gerrymandered to favor Republicans. 

The new Republican majority court overturned the previous two Harper cases in April with Harper III, which ruled partisan gerrymandering as not justiciable — meaning the General Assembly’s decisions to redraw maps that favor one political party over others cannot be overridden by state courts.

In June, the U.S. Supreme Court ruled in Moore v. Harper — a case appealed from the state supreme court Harper cases — that the elections clause in the U.S. Constitution does not give state legislatures full control of federal elections.

This ruling rejected independent state legislature theory, which asserts that state legislatures should have exclusive authority in establishing rules for federal elections unless Congress has intervened. 

But, the appeal that turned into Moore v. Harper was accepted by the U.S. Supreme Court before Harper III was decided, and the case was finalized after Harper III. Moore v. Harper ultimately had no impact on North Carolina because Harper III ruled that partisan gerrymandering is not justiciable under the state constitution — Moore v. Harper had concluded that state courts could still interpret their state constitutions in partisan gerrymandering claims.

Paul Newby, the N.C. Supreme Court chief justice, wrote in his Harper III opinion that partisan gerrymandering does not violate the state constitution’s free elections clause, which states that “all elections shall be free.”

In his opinion, Newby interpreted the clause to mean that voters have the right to cast a ballot without interference or intimidation.

"This case is not about partisan politics but rather about realigning the proper roles of the judicial and legislative branches," Newby wrote. "Today we begin to correct course, returning the judiciary to its designated lane."

Jim Stirling, research fellow with the conservative John Locke Foundation’s Civitas Center for Public Integrity, said he thinks partisan gerrymandering is an “inherently political question” — a phrase similar to what Newby wrote in his Harper III opinion — and should not be overseen by courts.

“We do have free elections, but the language for fair is actually not present in our constitution,” Stirling said. “It was implied within our constitution.” 

Former N.C. Supreme Court Justice Robert Orr said the court was correct in its ruling that proportionality is not a constitutional requirement.

Orr said drawing maps for a partisan advantage can violate the constitution to a certain extent, but that he thinks partisan gerrymandering is difficult to measure.

“We don’t know how much is too much political gerrymandering,” he said.

Bob Phillips, the executive director of Common Cause North Carolina — a group that has challenged N.C. maps as gerrymanders in the past —said he believes the state supreme court was correct in ruling on the unfairness of maps before Harper III.

“I believe in the interpretation that the North Carolina constitution does prescribe that partisan gerrymandering is a violation of the state constitution,” he said.

After Harper III, the General Assembly could create new maps with no constraints on partisan gerrymandering. The new congressional maps split the state into 10 safely Republican districts, three safely Democratic districts and one tossup.

However, Democrats in the General Assembly argued that N.C. Senate maps were racially gerrymandered by “cracking” Black voters across multiple districts in the northeastern part of the state.

On Nov. 20, two individual voters filed suit under Section 2 of the Voting Rights Act — which prohibits voting procedures that discriminate on the basis of race — challenging the new state senate maps as a racial gerrymander. The plaintiffs filed a motion for an expedited decision, which was rejected on Nov. 27. The case will continue on a regular schedule.

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On Monday, a lawsuit on the newly drawn congressional maps was filed by 18 N.C. residents. The lawsuit said four of the districts in the new maps unconstitutionally weaken the power of voters of color to elect representatives of their choice. The plaintiffs requested the congressional maps be thrown out and new remedial maps be drawn for the 2024 elections. 


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