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A three-judge federal panel unanimously ruled that North Carolina’s most recent redistricting plan constituted an invidious* partisan gerrymander that violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Election Clause (Art. I., Secs. 2 and 4) of the U.S. Constitution. It is the first time that a federal court has invalidated congressional districts purely on the basis of a partisan gerrymander.

“Partisan gerrymandering runs contrary to numerous fundamental democratic principles and individual rights enshrined in the Constitution,” wrote Circuit Judge James Wynn, a Barack Obama appointee, for the panel. “A partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights.”

The state is expected to seek a stay from the U.S. Supreme Court, before which a similar case from Wisconsin is pending. Another partisan gerrymandering case from Maryland will be heard later this spring. (The justices will also consider hearing cases from Texas involving two of its congressional and nine of its state House districts, but neither case claims partisan gerrymandering.). The impact this ruling could have on Texas is far from certain, because of the lack of firm standards for identifying when a map has gone too far and the particularly great lengths the North Carolina General Assembly went to ensure maximum Republican representation.

“Legislative Defendants do not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates,” Wynn wrote. “Nor could they.”

North Carolina’s congressional map is considered by several redistricting experts as one of the most extreme examples of partisan gerrymandering in the country. Statistical analyses conducted by expert witnesses in this case placed it at or near the top of all redistricting plans in all states since 1972 for its partisan skew. It is the state’s second congressional map used this decade. Both were constructed to yield similar results.

In 2011, a map was expressly drawn “to create as many districts as possible in which GOP candidates would be able to successfully compete for office” and to preserve two African-American districts. In the 2012 general election, Republican candidates received less than a majority of all votes cast statewide yet won nine of the 13 congressional districts. Two years later, a 5-point statewide swing toward Republican candidates flipped a 10th seat to them. These districts were struck down by a federal court in early 2016 on the basis of racial gerrymandering, and the Assembly was ordered to draw new districts.

The map they drew is the subject of this court case. Map drawers were instructed “make reasonable efforts to construct districts … to maintain the current partisan makeup” of the congressional delegation. No racial or other demographic data could be used. Only “election results in statewide contests since January 1, 2008, not including the last two presidential contests” could be used to guide mapmaking. Districts should be made more compact, but counties could still be split “for reasons of equalizing population, consideration of incumbency and political impact.” Democratic members were largely left out of the mapmaking process, and the overall legislative process “departed from the normal procedural sequence.”

In the 2016 general election, Republican candidates received 53% of the statewide vote yet won 10 of the 13 seats (77%), the same result produced by the map that was tossed out as an unconstitutional racial gerrymander.

To prove an Equal Protection clause violation, a redistricting plan must be shown to be “intended to place a severe impediment on the effectiveness of votes of individual citizens,” have that effect and “cannot be justified on other, legitimate legislative grounds.” The court found all three tests were met.

The court agreed with plaintiffs that “a wealth of evidence proves the General Assembly’s intent to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination.” The court concluded that the map had the desired effect, based on the 2016 election results, high levels of “partisan asymmetry,” expert witnesses’ statistical analyses and simulations of alternative plans and empirical analyses of past results.

“Partisan asymmetry” occurs when each party’s share of seats won differs based upon the same share of the vote. Under the 2016 map, Republicans won 53% of the statewide vote, which gave them 77% of the seats, which does not make it asymmetric. What makes it asymmetric is if the results aren’t similar if the other party wins the same share of the vote. Expert witnesses concluded that Republicans still would have won 77% of the seats even if Democrats won 53% of the statewide vote.

With the first two tests proven, the burden fell to the state to prove that legitimate legislative grounds could justify the map. The court was not moved by the state’s arguments that the map’s discriminatory effects were caused by Democratic voters’ tendency to cluster themselves, the desire to protect incumbents or any other grounds.

The court found that the map violated the First Amendment because it was intended to “disfavor supporters of non-Republican candidates based on those supporters’ past expressions of political beliefs.” Further, the map “burdened such supporters’ political speech and associational rights,” and a causal link existed between intent and effect. In a partial dissent, Judge William Osteen, a George W. Bush appointee, disagreed with this conclusion, arguing that the First Amendment does not require limiting partisan considerations when drawing districts. He otherwise agreed with the majority opinion.

Finally, the court found that the General Assembly exceeded the constitutional authority delegated to it under the Elections Clause. The Constitution does not “empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing” districts. Thus, because of this and other violations of the Constitution, the 2016 plan “represents an impermissible effort to ‘dictate electoral outcomes’ and ‘disfavor a class of candidates.’” This effort to “dictate electoral outcomes” violates the Constitutional authority of the people to elect their representatives to Congress.

The court gave the General Assembly until January 29 to enact a proposed remedial map for the 2018 general election. Any objections to the plan must be filed by February 5. Under state law, candidates begin filing for office on February 12. If a stay is granted, then this timeline is put on hold, and the state has already asked the district court to stay its decision, pending the U.S. Supreme Court’s actions on the Wisconsin and Maryland cases.

The court’s ruling did not indicate what constituted a permissible partisan gerrymander, and this is the issue that several U.S. Supreme Court justices raised during oral arguments about the Wisconsin case. The outlier nature of the North Carolina map made it particularly ripe for this type of challenge, but there continues to be no standard for determining exactly when a map has gone too far. Even if the U.S. Supreme Court determines one in its Wisconsin case ruling, it is likely that dissenting opinions would provide a roadmap for countering such claims in the future. It is also likely that any partisan gerrymandering claim made against Texas maps would not be decided until after the 2018 elections.

* “Invidious” means unfairly discriminatory, unjust and likely to arouse resentment in others. The word was used 35 times in the 191-page opinion.

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