By Tanner Henson

Before diving into the legal challenges that surrounded North Carolina’s 2022 congressional redistricting, it is important to understand the recent history of redistricting in the state.  In 2010, a wave election year for North Carolina Republicans, the GOP stunned those who follow state politics by securing majorities in both houses of the General Assembly for the first time since 1898.[1]  Underscoring the enormity of this shift, the State Senate flipped from a Democratic majority of 30–20 to a Republican majority of 31–19, while the State House of Representatives flipped from a Democratic majority of 68–52 to a Republican majority of 68–52.[2]

Having endured severe Democratic gerrymanders at the congressional level,[3] following their wins in 2010, legislative Republicans redrew congressional maps to generate a 10–3 Republican advantage.[4]  Under the North Carolina Constitution, congressional districts are drawn by the General Assembly and are not subject to the governor’s veto.[5]  Partially because of this structure, the Democratic aligned National Redistricting Action Fund, which is closely associated with former Attorney General Eric Holder, has frequently brought suit to enjoin maps favoring the GOP.[6]  Under North Carolina statutes, when a congressional map is challenged in state court, a three-judge panel, composed of Wake County’s senior superior court judge and two additional superior court judges appointed by the chief justice of the North Carolina Supreme Court, have exclusive jurisdiction.[7]  Appeals from this panel go directly to the state supreme court.[8]

In 2018, North Carolina Republicans saw their congressional advantage eroded from 10–3 to 8–5, following a federal court ruling that Republican state legislators “had violated the First amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party.”[9]  Given these losses, legislative Republicans went into 2022 looking to regain the lost seats.[10]  Following the 2020 Census, buoyed by North Carolina’s increasing population, which resulted in the state gaining a fourteenth congressional seat,[11] legislative Republicans again drew congressional maps that would have generated a 10–4 majority, even in bad political climates for the GOP.[12]  Likely due to an ideological shift in the North Carolina Supreme Court, which now has a 4–3 Democratic majority,[13] this year, Democratic–backed groups sued the General Assembly in state court, seeking to have the maps enjoined, according to the process outlined above.[14]

In a 260-page order, a three-judge panel upheld the map, ruling that “[a]t no point has restriction of redistricting for partisan advantage ever been made part of any North Carolina Constitution.”[15]  The panel viewed the constraints on redistricting enumerated in the North Carolina Constitution­—that members of Congress should represent nearly equal numbers of constituents, that districts should be contiguous, that maps should split as few counties as feasible, etc.—as exhaustive.[16]  The panel was unwilling to infer that the equal protection and free speech clauses of the state constitution somehow limited the legislature’s redistricting power; rather, the court wrote that “[i]f the framers did intend to limit the partisan advantage that could be obtained through redistricting, ‘it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.’”[17]  The panel stressed that the judiciary should not involve itself in such a purely political question, writing, “[w]ere we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government.  Once we embark on that slippery slope, there would be no corner of legislative or executive power that we could not reach.”[18]

However, in an order dated February 14, the North Carolina Supreme Court reversed the lower court, writing that the congressional map was “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”[19]  The court reasoned that to comply with the constraints in the North Carolina Constitution, “the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation.”[20]  The court further explained that when the legislature enacts a map that makes it more difficult for an individual to join with likeminded voters to elect a governing majority, “the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”[21]

Following its order, the court allowed the General Assembly a second opportunity to draw less partisan maps and suspended candidate filing during that period.[22]  However, the legislature enacted another congressional map that would have likely resulted in a 10–4 Republican advantage.[23]  On February 23, the reviewing three-judge panel rejected the second map drawn by the legislature and adopted a map drawn by four non-partisan special masters, which will likely result in either an 8–6 Republican advantage, or an evenly divided delegation.[24] The state supreme court subsequently approved of this map and reopened candidate filing.[25]

On February 25, the Speaker of the North Carolina House of Representatives, Tim Moore, filed an emergency appeal in the United States Supreme Court seeking to overturn the court-enacted congressional map,[26] arguing that the court-imposed map “usurped the legislature’s power to regulate congressional elections under the U.S. Constitution.”[27]  The appeal—Moore v. Harper—was placed on the Court’s shadow docket.[28]

Moore asked the Court to expand its prohibition against judicial interference with redistricting to cover state courts.[29]  The theory underlying the Speaker’s appeal is known as the independent state legislature doctrine.[30]  The theory is grounded in Article I, Section 4 of the United States Constitution, which gives state legislatures the authority to determine the time, place, and manner of congressional elections.[31]  While this grant of authority has been viewed as giving legislative leaders the authority to set the ground rules for elections, it has not previously prevented state court process.[32]  However, Speaker Moore and legislative Republicans argued that the legislature’s power under the Constitution is supreme, thereby preventing state court interference, even in instances where a map might violate the state constitution.[33]  Particularly, Moore argued that the state supreme court interfered with legislative authority to regulate the manner of elections when it enacted a map drawn by its own special masters.[34]

For over one-hundred years, the Supreme Court has rejected this expansive view of the powers granted to state legislatures.[35]  In accord with this precedent, the Court rejected Moore’s appeal.[36]  However, fissures are starting to appear in what had seemed to be a settled area of law.  First, at least four of the Court’s current justices signaled some willingness to examine the independent state legislature doctrine during former President Trump’s challenges to the 2020 election.[37]  Second, while the Court’s decision in Moore left in place the court-imposed maps, it did so over a pointed dissent penned by Justice Alito, who was joined by Justices Thomas and Gorsuch.[38]  The dissenters noted that the “case present[ed] an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”[39]  Justice Alito stressed the importance of answering this question, before lamenting that the Court had missed another opportunity to do so.[40]

Justice Kavanaugh wrote separately, concurring in the denial of Moore’s application for a stay.[41]  While Kavanaugh ultimately voted with the majority, he did so only because he felt that it was “too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections[.]”[42]  Kavanaugh largely agreed with Justice Alito that Moore had “advanced serious arguments on the merits” and posed a question that will “keep arising until the Court definitively resolves it.”[43]

This is likely not the end of the road for the independent state legislature doctrine.  We now know at least four justices are willing to entertain the doctrine, enough to grant certiorari. Some “Court watchers” are predicting that the fate of the theory rests on the vote of Justice Amy Coney Barrett, the only justice who has been, as of yet, completely silent on the merits of the doctrine.[44] Time will tell.


[1] Tracy W. Kimbrell & R. Bruce Thompson II, 2010 North Carolina Election Analysis, Parker Poe (Nov. 3, 2010), https://www.parkerpoe.com/news/2010/11/2010-north-carolina-election-analysis

[2] Id.

[3] See Noah Tom Bullock, North Carolina’s Congressional Primaries Are a Mess Because of These Maps, NPR (Mar. 10, 2016, 5:00 AM), https://www.npr.org/2016/03/10/469548881/north-carolinas-congressional-primaries-are-a-mess-because-of-these-maps.  One district, the twelfth, looked reminiscent of a snake, running along I-95 for approximately 80 miles.  The district spanned from Charlotte to Winston-Salem, and at times was no wider than the interstate it tracked. 

[4] Scott Bland, Court Throws Out N.C. Congressional Map Before Election, Politico (Aug. 27, 2018, 7:54 PM), https://www.politico.com/story/2018/08/27/north-carolina-congressional-map-thrown-out-798609.

[5] N.C. Const. art. II, § 22(5).

[6] Patrick Rodenbush, Eric Holder and Marc Elias Discuss NRAF Redistricting Lawsuits, Nat’l Redistricting Action Fund (Apr. 27, 2021), https://redistrictingaction.org/news/eric-holder-and-marc-elias-discuss-nraf-redistricting-lawsuits.  

[7] Doug Spencer, All About Redistricting North Carolina, Loyola L. Sch., https://redistricting.lls.edu/state/north-carolina/?cycle=2020&level=Congress&startdate=2021-11-04 (last visited Mar. 23, 2022).  

[8] Id.

[9] Bland, supra note 4.

[10] See Michael Wines, North Carolina Court Says G.O.P. Political Maps Violate State Constitution, N.Y. Times (Feb. 4, 2022), https://www.nytimes.com/2022/02/04/us/north-carolina-redistricting-gerrymander-unconstitutional.html.

[11] Bill O’Neil, North Carolina Gains Seat in Congress After Census Results Released, WXII12 (Apr. 26, 2021, 8:43 PM), https://www.wxii12.com/article/north-carolina-census-results-additional-congress-seat/36255789.  

[12] Wines, supra note 10.

[13] Id.

[14] See supra notes 7–8 and accompanying text.

[15] Unanimous Three-Judge Panel Upholds N.C. Election Maps, Appeal Likely, Carolina Journal (Jan. 11, 2022, 5:43 PM), https://www.carolinajournal.com/news-article/unanimous-three-judge-panel-upholds-n-c-election-maps-appeal-likely/.  

[16] Id.

[17] Id.

[18] Id.

[19] Ethan Cohen, North Carolina Supreme Court Strikes Down Redistricting Maps, CNN Politics (Feb. 4, 2022, 7:59 PM), https://www.cnn.com/2022/02/04/politics/north-carolina-redistricting-struck-down/index.html.  

[20] Harper v. Hall, 868 S.E.2d 499, 546 (N.C. 2022).

[21] Id. at 544.

[22] Id. at 559.

[23] Michael Wines, North Carolina Court Imposes New District Map, Eliminating G.O.P Edge, N.Y. Times (Feb. 23, 2022), https://www.nytimes.com/2022/02/23/us/politics/north-carolina-maps-democrats.html.  

[24] Id.

[25] Id.

[26] What Redistricting Looks Like in Every State, FiveThirtyEight (Mar. 22, 2022, 4:50 PM), https://projects.fivethirtyeight.com/redistricting-2022-maps/north-carolina/.  

[27] Id.

[28] Moore v. Harper, SCOTUSblog, https://www.scotusblog.com/case-files/cases/moore-v-harper/ (last visited Mar. 7, 2022).

[29] Adam Liptak, Supreme Court Allows Court-Imposed Voting Maps in North Carolina and Pennsylvania, N.Y. Times (Mar. 7, 2022), https://www.nytimes.com/2022/03/07/us/supreme-court-voting-maps.html (arguing “that the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play”).

[30] Richard L. Hasan, North Carolina Republicans Ask SCOTUS to Decimate Voting Rights in Every State, Slate (Feb. 25, 2022, 7:32 PM), https://slate.com/news-and-politics/2022/02/north-carolina-republicans-scotus-gerrymandeering-assault.html.  

[31] U.S. Const. art. I, § 4.

[32] Hasan, supra note 30.

[33] Id.

[34] Rusty Jacobs, Supreme Court Filing in NC Redistricting Matter Poses Thorny Questions for Conservatives, WFAE 90.7 (Feb. 28, 2022, 5:03 PM), https://www.wfae.org/politics/2022-02-28/supreme-court-filing-in-n-c-redistricting-matter-poses-thorny-questions-for-conservatives.  

[35] Hasan, supra note 30.

[36] Liptak, supra note 29.

[37] Id.

[38] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Alito, J., dissenting), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.

[39] Id. s

[40] Id.

[41] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Kavanaugh, J., concurring), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.

[42] Id. at 2.

[43] Id. at 1.

[44] Ian Millhiser, The Fate of American Elections Is in Amy Coney Barrett’s Hands, Vox (Mar. 4, 2022, 8:00 AM), https://www.vox.com/22958543/supreme-court-gerrymandering-redistricting-north-carolina-pennsylvania-moore-toth-amy-coney-barrett.  

By Samuel Gilleran

In a sweeping, 357-page ruling released yesterday afternoon, a three-judge panel of North Carolina Superior Court judges unanimously held that partisan gerrymandering violates multiple provisions of the North Carolina Constitution,[1] including the Equal Protection Clause,[2] the Free Elections Clause,[3] and the Freedom of Speech and Freedom of Assembly Clauses.[4]

The panel then proceeded to enjoin the use of the maps in the 2020 primary and general elections, ordered the General Assembly to enact new maps within two weeks, and forbade the use of “[p]artisan considerations and election results data.”[5] The panel further decreed that the General Assembly could not use the current map “as a starting point for drawing new districts, and no effort may be made to preserve the cores of invalidated 2017 districts.”[6] The panel forbade the use of outside consultants without Court approval and demanded that “the entire remedial process” must occur “in full public view. At a minimum, this requires all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers.”[7] Finally, the panel “retain[ed] jurisdiction” to adjust the dates of the 2020 primary elections in the event that such an adjustment was “necessary to provide effective relief in this case.”[8]

The panel noted that the allegations of partisan gerrymandering were essentially uncontested.[9] After all, in the related redrawing of the congressional district lines, Rep. David Lewis (R-Harnett), a leader in the Republican redistricting effort, plainly stated his belief that a “political gerrymander [was] not against the law” in urging the adoption of a map that would “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[10] The real question at issue was whether such gerrymandering was both proscribed under the North Carolina Constitution and justiciable by the North Carolina courts. The panel answered both questions affirmatively.

Before the panel expounded its holdings under the state constitution, it first explained why the Supreme Court’s opinion in Rucho v. Common Cause[11] did not control. As the panel noted, the Supreme Court explicitly reserved the issue of partisan gerrymandering for state review. It quoted the high court’s assertion that its opinion in Rucho did “not condone excessive partisan gerrymandering” and did not “condemn complaints about districting to echo into a void.”[12] “Rather, the Supreme Court held, ‘[t]he States . . . are actively addressing the issue on a number of fronts,’ and ‘[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.’”[13] The panel held that such provisions were present in North Carolina’s constitution.

First, the panel examined the Free Elections Clause. It noted that this clause “is one of the clauses that makes the North Carolina Constitution more detailed and specific than the federal Constitution in the protection of the rights of its citizens.”[14] The panel traced the evolution of the Free Elections Clause throughout the history of North Carolina’s legal system and concluded that it provides a justiciable right to North Carolinians; it is not merely hortatory or aspirational language.[15] It specifically pointed to a 1971 revision of the state constitution in which the wording of the clause was changed from “all elections ought to be free” to “all elections shall be free.”[16] “This change was intended to ‘make [it] clear’ that the Free Elections Clause and the other rights secured to the people by the Declaration of Rights ‘are commands and not mere admonitions’ to proper conduct on the part of the government.”[17]

The panel went on to hold that “[t]he partisan gerrymandering of the 2017 Plans strikes at the heart of the Free Elections Clause. . . . Elections are not free when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power. In doing so, partisan actors ensure from the outset that it is nearly impossible for the will of the people—should that will be contrary to the will of the partisan actors drawing the maps—to be expressed through their votes for State legislators.”[18]

In holding that North Carolina’s Free Elections Clause proscribed partisan gerrymandering, the panel’s logic tracked that of the Pennsylvania Supreme Court, which in 2018 held that a similar clause in that state’s constitution forbade partisan gerrymandering.[19] In that case, the court overturned a Republican gerrymander of Pennsylvania’s congressional districts; in the ensuing election, Democrats flipped three seats and came within 11,239 votes in three more.[20] Were it not for Pennsylvania’s political geography, in which there are 260,000 excess Democratic votes in the 3rd Congressional District (Philadelphia), Democrats could have won even more seats.[21]

Second, the panel examined North Carolina’s Equal Protection Clause.[22] The panel noted that the state version of the clause has been interpreted more broadly than the federal courts have interpreted the federal clause.[23] And so the panel relied on previous state supreme court precedents to explicate that North Carolina’s Democratic voters were being treated unequally and that because the fundamental right to vote was implicated, strict scrutiny applied.[24]

Third, the panel turned to the Free Speech and Free Assembly claims. The panel held that “the 2017 Plans discriminate[d] against . . .  Democratic voters based on their protected expression and association” and that “[d]iscriminating against citizens based on their political beliefs does not serve any legitimate government interest.”[25] The panel also held that the 2017 plans were unconstitutional under a retaliation theory of the Free Speech and Free Assembly Clauses; because Democratic voters had past protected political activity (i.e., voting for Democratic candidates) and because Republican mapmakers had chosen Democrats for negative treatment based on their protected activity, a retaliation claim was successful.[26]

Finally, the panel had to decide whether the claims were justiciable. After all, the Supreme Court had essentially held just a few months prior that while partisan gerrymandering was bad behavior, it was powerless to stop it due to a lack of judicially manageable standards. The panel held that the question of partisan gerrymandering did not fall within the political question doctrine; it is justiciable.[27] The panel specifically noted that one of the main purposes of the judicial branch of government was to be a check on the legislature’s desire to aggrandize power to itself. Citing a case from 1787, dating all the way back to the founding of the Republic, the panel declared:

“If unconstitutional partisan gerrymandering is not checked and balanced by judicial oversight, legislators elected under one partisan gerrymander will enact new gerrymanders after each decennial census, entrenching themselves in power anew decade after decade. When the North Carolina Supreme Court first recognized the power to declare state statutes unconstitutional, it presciently noted that absent judicial review, members of the General Assembly could ‘render themselves the Legislators of the State for life, without any further election of the people.’ Those legislators could even ‘from thence transmit the dignity and authority of legislation down to their heirs male forever.’ Extreme partisan gerrymandering reflects just such an effort by a legislative majority to permanently entrench themselves in power in perpetuity.”[28]

Notably, the panel rejected the argument that because gerrymandering had a long history, it was therefore constitutional. Citing to the seminal voting rights case Reynolds v. Sims, the panel stated that “widespread historical practices does not immunize governmental action from constitutional scrutiny.”[29] Merely because a practice was longstanding – and even, as in this case, engaged in by one of the Plaintiffs (i.e., the North Carolina Democratic Party) during the many years when it was in power – does not somehow eliminate the rights reserved by North Carolinians under the state constitution. The panel also rejected the idea that it needed to find a bright-line rule for how much partisan gerrymandering was too much, the question that so plagued the Supreme Court in Rucho. Instead, the panel stated the obvious: “[t]his case is not close.”[30] In essence, the panel held that, wherever the line is, this set of facts is so far past that line that Plaintiffs’ entitlement to relief is indisputable.

The reaction to the panel’s decision was swift. Sen. Jeff Jackson (D-Mecklenburg) tweeted that the ruling was “the single best news [he] ha[d] ever heard” during his time in the legislature,[31] while Rep. Graig Meyer (D-Orange) called the ruling “a big win for democracy and a game changer for 2020.”[32] But the biggest news came from Republican Senate Majority Leader Phil Berger (R-Rockingham), who announced that Republicans would not appeal the decision to the state Supreme Court. Although castigating the panel’s decision, Sen. Berger stated that “[n]early a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on. To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”[33] Election law scholar Rick Hasen suggested a few reasons why Republicans elected not to appeal, including the simple facts of sure loss in the North Carolina Supreme Court and the greater precedential value of the inevitable negative decision from that court.[34]

What are the practical ramifications of this decision? For the first time in a long time, Democrats truly believe they can win back majorities in each house of the legislature.[35] Republicans currently maintain a 65-55 margin in the state house, and given the sheer number of districts identified in the decision as unconstitutionally gerrymandered, Democrats have to feel good about the prospects of taking back at least that chamber. Democrats carried a majority of the two-party vote in 2018,[36] and it is historically likely that the electorate in 2020, a presidential year, will be younger and more racially diverse than in 2018, a midterm year.[37]

Judging from the simulations run by political scientists and adjusting for a 2020 political environment, Democrats have a strong chance at flipping House seats in Columbus County,[38] Cumberland County,[39] Franklin County,[40] Pitt County,[41] Guilford County,[42] Forsyth County (possibly two)[43], New Hanover County,[44] Onslow County,[45] Anson County,[46] and Alamance County.[47] If Democrats were able to flip even six of these eleven targets, it would give them a 61-59 majority in the state house, all other things being equal.

Similarly, on the Senate side, Republicans retain a 29-21 majority, so the Democrats would have to flip five seats. The panel’s ruling gives Democrats a reasonable chance at flipping seats in Mecklenburg County[48] and Wake County,[49] but in other gerrymandered districts that would be unwound by the ruling, such as in Guilford County and New Hanover County, Democrats managed to defeat the gerrymander in 2018. That said, unwinding the gerrymander makes the playing field different and, in a good year, could allow Democrats to take Senate seats that they ordinarily would not. In addition, when decennial redistricting occurs in 2021 after the 2020 census, it could be that a few seats will shift from rural to suburban and urban areas, thereby helping Democratic chances moving forward.


[1] Common Cause v. Lewis, No. 18-cv-14001, slip op. at 352–53 (N.C. Super. Ct. [Wake] Sep. 3, 2019), https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf.

[2] N.C. Const. art. I, § 19.

[3] N.C. Const. art. I, § 10.

[4] N.C. Const. art. I, §§ 12, 14.

[5] Common Cause, slip op. at 353–55.

[6] Id. at 355.

[7] Id. at 356.

[8] Id. at 357.

[9] Id. at 23.

[10] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[11] 139 S. Ct. 2484 (2019) (holding partisan gerrymandering non-justiciable under the federal Constitution).

[12] Common Cause, slip op. at 299 (quoting Rucho, 139 S. Ct. at 2507).

[13] Id. (emphasis added in Common Cause).

[14] Id.

[15] Id. at 303–04.

[16] Id. at 304 (emphasis added in Common Cause) (quoting N.C. Const.  art I, § 10) (comparing 1868 version to 1971 version).

[17] Id. (quoting N.C. State Bar v. DuMont, 304 N.C. 627, 635, 639, 286 S.E.2d 89, 94, 97 (1982)).

[18] Id. at 305.

[19] See League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[20] Pennsylvania Election Results, N.Y. Times (last updated Dec. 19, 2018, 5:12 PM), https://www.nytimes.com/interactive/2018/11/06/us/elections/results-pennsylvania-elections.html.

[21] Id.

[22] Common Cause, slip op. at 307.

[23] Id. at 308–09.

[24] Id. at 315–16.

[25] Id. at 328.

[26] Id. at 329–31.

[27] Id. at 334.

[28] Id. at 333 (quoting Bayard v. Singleton, 1 N.C. 5, 7 (1787)).

[29] Id. (citing Reynolds v. Sims, 377 U.S. 533, 582 (1964) (invalidating Alabama’s malapportioned legislative districts despite a history of malapportionment that dated back to the founding). North Carolina itself engaged in such malapportionment, which has been documented as early as 1792. See Thomas Rogers Hunter, The First Gerrymander?: Patrick Henry, James Madison, James Monroe, and Virginia’s 1788 Congressional Districting, 9 Early Am. Stud. 781, 819 (2011) (discussing a 1792 map that “severely overpopulated” congressional districts in the northeast corner of the state).

[30] Common Cause, slip op. at 341.

[31] Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 4:40 PM), https://twitter.com/JeffJacksonNC/status/1168987115637682176.

[32] Graig Meyer (@GraigMeyer), Twitter (Sep. 3, 2019, 4:44 PM), https://twitter.com/GraigMeyer/status/1168988126200705026.

[33] Nick Ochsner (@NickOchsnerWBTV), Twitter (Sep. 3, 2019, 5:27 PM), https://twitter.com/NickOchsnerWBTV/status/1168998919885508608.

[34] See Rick Hasen, North Carolina Republicans Won’t Appeal Gerrymandering Ruling, Promise “Nonpartisan” Map. What’s the End Game?, Election L. Blog (Sep. 3, 2019, 3:13 PM), https://electionlawblog.org/?p=107179.

[35] See Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 7:03 PM), https://twitter.com/JeffJacksonNC/status/1169023123938824194 (“With fair maps, we have a genuine shot at electing a state legislature that actually reflects the political will of our state.”).

[36] Common Cause, slip op. at 233.

[37] See, e.g., Matthew Yglesias, The 2018 Electorate Was Older, Whiter, and Better Educated Than in 2016, Vox (Nov. 12, 2018, 10:00 AM), https://www.vox.com/policy-and-politics/2018/11/12/18083014/2018-election-results-turnout

[38] Common Cause, slip op. at 153.

[39] Id. at 157–58.

[40] Id. at 161–64.

[41] Id. at 164–69.

[42] Id. at 170–75.

[43] Id. at 181–85.

[44] Id. at 194–99.

[45] Id. at 199–203.

[46] Id. at 203–08.

[47] Id. at 209–15.

[48] Id. at 109–17.

[49] Id. at 117–23.

By Matt Deorocki

As the 2020 census and election cycle draws ever closer, some North Carolinians are looking to the state’s court system to provide guidance on the constitutionality of partisan gerrymandering in Common Cause v. Lewis. Since filing its original complaint on November 13, 2018, Common Cause, a non-profit, “nonpartisan democracy organization with over 1.2 million members and local organizers in 35 states” has sought a ruling striking down partisan gerrymandering within North Carolina’s state legislative districts.[1] While North Carolina has a rather illustrious history regarding gerrymandering, the state’s most recent controversies spur from what Common Cause defines as ill-intended Republican efforts in 2010 and 2017 to solidify power through partisan redistricting.[2]

Common Cause asserts that national Republican leaders targeted North Carolina in a concerted effort with the Republican State Leadership Committee (RSLC) to redraw North Carolina’s state congressional districts to ensure greater Republican representation.[3] Using a plan codenamed “REDMAP,” Common Cause claims that four Republican operatives, including the famed Republican strategist Thomas Hofeller, set forth redistricting maps in 2011 that were completely devoid of any committee or subcommittee influence from either branch of the state legislature[4] After passing party-line votes in the House and Senate, subsequent litigation was brought, ultimately leading to Republican leaders in the General Assembly admitting that “[p]olitical considerations played a significant role in the enacted plans and all alternatives.”[5]

Further challenges on Republican-drawn districts came into light in 2017. Ultimately, anti-gerrymandering enthusiasts emerged with a short-lived victory in Covington v. North Carolina, a case in which 19 House districts and 9 Senate districts were found to be in violation of the federal Equal Protection Clause due to racially motivated redistricting schemes. Nevertheless, victory was short-lived, as Republicans, including Hofeller, found themselves at the helm of remedial redistricting.[6] With racial gerrymandering violations fresh in the redistricting strategists’ minds, Hofeller and the redistricting committee set forth a 2017 plan seeking to maximize Republican partisan advantage.[7] In fact, Republican leaders in the General Assembly plainly admitted they were seeking to maximize Republican advantage. In relation to the similarly gerrymandered congressional map, one leader stated that he wanted to “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[8]

Accordingly, the main question in Common Cause v. Lewis is not whether North Carolina Republicans engaged in partisan gerrymandering, but whether partisan gerrymanders violate North Carolina’s Constitution. Given the United States Supreme Court’s recent ruling in Rucho v. Common Cause, a case regarding partisan gerrymandering in federal congressional districts, Common Cause is likely facing an uphill battle in Superior Court, North Carolina’s trial court.[9] In Rucho, the Supreme Court defined the scope of judicial action in partisan gerrymandering controversies, ultimately holding that “[P]artisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”[10] Despite indicating that “such gerrymandering is ‘incompatible with democratic principles,’” Chief Justice Roberts, writing for the 5-4 majority, gave the resounding answer: it’s not our job.[11]

Given this significant precedent, a key question remains: why is Common Cause getting a second chance? In reality, the United States Supreme Court’s overall ruling is binding on all courts interpreting the United States Constitution. In addition, The Supreme Court’s holding on justiciability likely binds any federal court interpreting a state constitution via supplemental jurisdiction. However, a North Carolina court may interpret North Carolina’s Constitution to provide greater rights than are seen in the United States Constitution because its holding would be based solely on state constitutional protections. Thus, because the North Carolina Superior Court has adequate and independent grounds under the North Carolina Constitution to evaluate partisan gerrymandering, Common Cause is free to launch its attack once again under the state constitution. Nevertheless, in order to overcome the significant persuasive authority set forth by the Supreme Court, Common Cause has honed in on three specific counts, each drawing light to “increased” protections held within North Carolina’s Constitution.[12]

Common Cause launched its attack by arguing that partisan gerrymandering violates North Carolina’s Equal Protection clause.[13] The basis of the argument relies on the clause, “[n]o person shall be denied the equal protection of the laws,” extending protection beyond that of the Federal Constitution.[14] While the clause has been interpreted to protect the right of “substantially equal voting power,” it is unclear whether the clause has applicability to partisan concerns.[15] Accordingly, Common Cause reasoned that the argument fits because Republicans purposefully diluted the voting power of Democrats, thereby making it “more difficult for Democratic candidates to be elected across the state, and . . . rendering it virtually impossible for the Democratic Party to achieve a majority of either chamber of the General Assembly.”[16] However, Common Cause’s argument should face significant skepticism, as Democrats are not a suspect class and are not entitled to increased judicial protections.

In their Post-Trial Brief filed August 7, 2019, Defendants in Common Cause v. Lewis addressed these accusations by reasoning that by delegating district map drawing to a political branch, the branch naturally could “consider partisan advantage and incumbency protection in the application of its discretionary redistricting decision.”[17] Furthermore, defendants returned an ill-willed jab stating: “Plaintiffs do not belong to a suspect class. Nor do they suffer an injury to ‘a constitutionally protected right to vote, and to have their votes counted.’ Instead, they complain of the political impact of district lines that will, in all events, have political consequences.”[18]

Given the Supreme Court’s refusal to act on equal protection grounds in Rucho, it would seem unlikely that a North Carolina Superior Court would take the opposite stand. Yet the three-judge panel appointed to hear the case is made up of two Democrats and one Republican, perhaps better odds than the 5-4 Supreme Court split.[19]

Common Cause also attacks Republican redistricting by claiming its partisan considerations violate the Free Elections Clause of the North Carolina Constitution, which provides “All elections shall be free.”[20] Despite this rather ambiguous language, Common Cause has supported its contention by arguing that on February 7, 2018, the Pennsylvania Supreme Court held that a partisan gerrymander of Pennsylvania congressional districts violated Art. I, Sec. 5 of the Pennsylvania Constitution, which provides for elections that are “free and equal.”[21] The Pennsylvania Supreme Court ultimately ruled that Pennsylvania’s Free and Equal Elections Clause requires voters to “have an equal opportunity to translate their votes into representation” and that said requirement is ultimately violated by “extraneous considerations such as gerrymandering for unfair partisan political advantage.”[22] As is easily done when arguing over semantics, the defense answered the attack by pointing to the notion that the Pennsylvania Constitution requires “free and equal” elections while the North Carolina Constitution merely indicates that elections must be “free.”[23] Accordingly, the defense articulates that there simply is nothing violating the North Carolina clause, as there is nothing impeding voting and each vote is being counted.

Finally, Common Cause argues that the Defendants have violated North Carolina’s Freedom of Assembly and Free Speech Clauses “by intentionally burdening the protected speech and/or expressive conduct of Plaintiffs and other Democratic voters, including members of Common Cause and the NCDP based on their identity, their viewpoints, and the content of their speech.”[24] However, the Defendants responded by stating that Plaintiffs’ viewpoints are not being restricted in any manner and there is no prohibition on speaking or associating with one another.[25] Here, it is likely that Common Cause has taken a more abstract view of speech and association by arguing that Republican redistricting techniques have deprived them of being able to assert the political philosophies in an adequate manner. Today, it remains uncertain whether such an argument can stand.

Given the Supreme Court’s ruling in Rucho v. Common Cause and North Carolina Constitution’s limited variance from the federal Constitution, I believe that a ruling in Common Cause’s favor is highly unlikely, despite the partisan makeup of the panel (two Democrats and one Republican). The persuasive authority of the United States Supreme Court may be a significant deterrent for any judge thinking about ruling in Common Cause’s favor. With the Supreme Court already ruling on a similar, albeit different constitution, North Carolina’s Superior Court could readily defer their opinion to the language expressed in Rucho, limiting their political liability. Either way, the Superior Court’s ruling will be short-lived, as the loser will surely appeal the case to the North Carolina Supreme Court in the immediate aftermath.


[1] Amended Complaint at 3, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] filed Dec. 7, 2018) [hereinafter Amended Complaint]

[2] Id. at 17

[3] Id.

[4] Id. at 19.

[5] Defendants-Appellees’ Brief on Remand at *16, Dickson v. Rucho, 781 S.E.2d 404 (N.C. 2015) (No. 201PA12-3), 2015 WL 4456364.

[6] Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017)

[7] Amended Complaint, supra note 1, at 28, (citing Covington, ECF No. 187-3 at 2)

[8] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[9] See Rucho v. Common Cause, No. 18-422 slip op. at 30 (U.S. June 27, 2019)

[10] Id.

[11] Id. (citing Arizona State Legislature, 576 U.S. at ____ (slip op., at 1)).

[12] Amended Complaint, supra note 1, at 67–74.

[13] Id. at 67.

[14] N.C. Const. art. I, § 19.

[15] Stephenson v. Bartlett, 562 S.E.2d 377, 394 (N.C. 2002)

[16] Amended Complaint, supra note 1, at 68.

[17] Defendant’s Post-Trial Brief at 4, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] (Aug. 7, 2019) [hereinafter Defendant’s Post-Trial Brief] (citing Stephenson v. Bartlett, 562 S.E.2d at 390 (N.C. 2002)).

[18] Id. at 7 (citing Reynolds v. Sims, 377 U.S. at 554–55 (1964)).

[19] Order, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] (Nov. 27, 2018); Kari Travis, In Common Cause v. Lewis, Courts Will Again Take on Partisan Gerrymandering. Carolina J. (July 15, 2019), https://www.carolinajournal.com/news-article/in-common-cause-v-lewis-courts-will-again-take-on-partisan-gerrymandering/.

[20] N.C. Const. art I, § 10.

[21] Pa. Const. art I, § 5; League of Women Voters v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[22] League of Women Voters, 178 A.3d at 814, 817.

[23] Defendant’s Post-Trial Brief, supra note 16 at 19 (citing Pa. Const. art I, § 5; N.C. Const. art I, § 10).

[24] Amended Complaint, supra note 1, at 72.

[25] Defendant’s Post-Trial Brief, supra note 16 at 19.