North Carolina Democrats are taking a new approach in their latest legal challenge to Republican-drawn legislative district lines, focusing on a state court that may be more favorable to them than the federal judiciary.

Democratic groups and the state branch of Common Cause filed suit just days after the Nov. 6 midterm elections, challenging the validity of legislative lines established by the GOP-led General Assembly. The suit claims Republicans improperly considered voters’ partisan affiliations when drawing the lines.

ADVERTISEMENT

The case will be heard by a three-judge panel, but it is almost certain to be appealed to the North Carolina Supreme Court, where Democrats outnumber Republicans by a 5-to-2 margin.

Democrats supporting the suit said they hoped to replicate a legal victory they scored this year in Pennsylvania, where the state Supreme Court ruled in favor of Democrats and redrew congressional district lines.

Under the old lines, Republicans held 13 of Pennsylvania’s 18 U.S. House seats. In the new version, each party won nine seats during the midterms.

“The strategic pivot on litigation on redistricting is to really hone in on state law, like was done in Pennsylvania, because the Supreme Court is not, I think, friendly territory,” said Kelly Ward, who runs the National Democratic Redistricting Committee (NRDC), one of the groups suing over North Carolina’s district lines.

The suit in North Carolina does not challenge congressional district lines; another challenge to those lines is already before the U.S. Supreme Court.

But in challenging state legislative district lines, Democrats hope they can get a new map that would help them win back enough seats to reclaim a majority in at least one legislative chamber in Raleigh, enough to earn a seat at the table during the decennial redistricting process.

“In Pennsylvania, a Democratic-controlled state Supreme Court relied on state constitutional provisions to invalidate a congressional map drawn by Republican legislators," said John Dinan, a political scientist at Wake Forest University whose research focuses on state constitutions. "In North Carolina, litigants are looking to a Democratic-controlled state Supreme Court to issue a similar ruling, albeit in the case of state legislative maps."

After Democratic gains in the midterms, Republicans will control 29 of 50 state Senate districts in North Carolina. In the Assembly, Republicans hold a 65-55 majority. Even though Democrats will once again be in the minority, they no longer face a Republican supermajority that could end Democratic filibusters.

“The North Carolina legislative map is very gerrymandered. There’s no question about it,” Ward said. “In the most historic, record-setting election in modern history, Democrats could barely break the supermajority in the North Carolina legislature.”

Republicans have questioned the logic behind the suit, which alleges that some districts have been packed with Democratic voters and that other districts have been drawn with the intention of diluting Democratic votes — a system known in the arcane world of political law as packing and cracking.

Republicans pointed to several districts highlighted in the lawsuit where Democrats won in this month’s elections.

“This is the first time in a state case that we’ve faced this partisan gerrymandering theory under the state constitution,” said Brent Woodcox, a special counsel to Republicans in the state General Assembly. “It’s hard to argue that it’s a partisan gerrymander when it elects the candidates you want to elect.”

Republicans also take issue with one of the justices who will hear arguments in the case.

This year, Democrats in North Carolina backed Anita Earls, a voting-rights advocate who sued the legislature over district lines when she served as an attorney at the Southern Coalition for Social Justice. Earls beat out Barbara Jackson, an incumbent Republican.

“One of the parties to the original lawsuit is now going to decide the plan before 2020,” Woodcox said.

Dinan, the Wake Forest political scientist, said it was “almost certain” that the state Supreme Court would rule for Democrats and order a special master to draw new legislative boundaries before the next election, in 2020.

“The only remaining question at that point will be whether the U.S. Supreme Court might be open to considering an appeal from North Carolina legislative Republicans, once the state Supreme Court orders the legislative districts redrawn by a special master,” Dinan said.

The U.S. Supreme Court declined to hear Pennsylvania Republicans’ appeal in their own case earlier this year.

Marc Elias, who has spearheaded a number of Democratic challenges to GOP-drawn district lines in recent years, said different circumstances lead to different decisions on where and how to mount legal challenges.

“There are places like in Virginia and North Carolina where federal court made sense and we saw victories in both,” Elias said in an email. He pointed to ongoing federal litigation in Alabama, Georgia and Louisiana.

“In other places, state laws and courts provide a better forum,” he said, listing Florida, Minnesota and Nevada as examples.

Republicans, who were already forced to redraw some district lines they initially crafted after the 2010 Census, see political motivations behind the new suit.

“It’s clear that the districts that are being targeted are the targets that Dems have to try to control the redistricting process,” Woodcox said.

Ward characterized the latest move by Democrats as amounting to a two-pronged battle.

“We have to fight this war on multiple fronts,” Ward said. “Elections are one front, and litigation is another.”