The N.C. General Assembly’s districts are in violation of the state constitution, and legislators must create a new district map for use in the 2020 election, a three-judge Superior Court panel unanimously ruled Tuesday.

The decision in the case Common Cause v. Lewis found that the current map, created in 2017, continued the racially based gerrymandering of districts that courts previously struck down. But Judges Paul Ridgeway, Joseph Crosswhite and Alma Hinton also found that drawing maps for extreme partisan advantage, as both major parties have historically done, infringes on the constitutional rights of voters.

“Allowing the General Assembly discretion to establish its own redistricting criteria and craft maps accordingly is what the North Carolina Constitution requires; systemically packing and cracking voters to the extent that their votes are subordinated and devalued for no legitimate governmental purpose, but rather the purposes of entrenching a political party in power, is what the North Carolina Constitution forbids,” the decision said.

This decision, which may be appealed to the N.C. Supreme Court, accepts for the first time the argument that partisan gerrymandering is potentially unconstitutional even when other racial or other discrimination is not involved, though it emphasized that this case hinged on the “extreme” nature of the partisanship in the current legislative scheme. The decision acknowledged that some other cases in the future might not exhibit this scope of partisan gerrymandering and might be decided differently as a result.

While Republican Senate leader Phil Berger issued a statement disagreeing with the decision late Tuesday, he appeared to indicate plans to comply rather than appeal. It remains to be seen whether other defendants will attempt to appeal to the state high court, which currently has a Democratic majority.

“We disagree with the court’s ruling as it contradicts the constitution and binding legal precedent, but we intend to respect the court’s decision and finally put this divisive battle behind us,” Berger said.

“Nearly 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.

The current map was created by the overwhelmingly Republican legislative majority in 2017 after the courts found that a previous map used race too heavily in creating districts, even if race was used primarily as a proxy for political affiliation. Tuesday’s ruling found that this practice had not sufficiently been corrected in drawing the current districts.

Even so, the court found that even if race were not involved, legislators went too far in creating a Republican advantage.

If the state Supreme Court upholds the decision, current legislators would have to create new districts.

Can courts rule on partisan gerrymandering?

The court’s decision Tuesday cited recent precedents from other states, including the Pennsylvania, Texas and Florida Supreme Courts, in ruling that partisan gerrymandering is subject to constitutional review.

The question is significant because the U.S. Supreme Court ruled earlier this year that it did not have standing to rule on the legality of North Carolina’s congressional districts, in which the same type of partisan gerrymandering was alleged.

Although some have interpreted this as saying courts have to stay out of redistricting decisions, legal experts generally agreed that the federal justices were indicating district map reviews are a matter for state courts.

Tuesday’s decision could indicate that those who want to challenge the state’s congressional districts in state court have a good chance of succeeding as well since similar arguments have been made and the same legislature drew those districts.

The court also noted Tuesday why the judges believe giving this authority to the judicial branch of government is important: “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. … Extreme partisan gerrymandering reflects just such an effort by a legislative majority to permanently entrench themselves in power in perpetuity.”

The court acknowledged that the same process has been used, though with less precision, by both Democrats and Republicans in North Carolina for decades but said this did not change the court’s ability to address the inequity created: “Long-standing and even widespread historical practices do not immunize governmental action from constitutional scrutiny.”

‘Extreme’ partisanship condemned

The court found that the current legislative maps did not constitute simply gerrymandering but what the decision repeatedly described as “extreme” partisan gerrymandering.

Because the decision focused on this question of scope, it was unclear how it might be applied as a legal precedent to more limited forms of partisan gerrymandering in North Carolina in the future.

“When the court is presented with evidence of the scope and quality proffered by the plaintiffs that shows widespread and extreme partisan gerrymandering – multiple districts showing a greater partisan skew than any of 3,000 randomly generated maps, all with the state’s political geography and districting criteria built in – the standard is indeed clear and manageable,” the decisions said.

“Such extreme partisan gerrymanders violate the fundamental constitutional rights of free elections, equal protection, speech, assembly and association. It is the court’s duty to say so.”

The decision acknowledged that the applicable standards in this case might not apply in a future hypothetical case in which the arguments for improper partisan gerrymandering were close. “This case is not close,” the decision said. “The extreme, intentional and systematic gerrymandering of the 2017 plans runs far afoul of the legal standards set forth above, or any other conceivable legal standard that could govern plaintiffs’ constitutional claims.”

What the court ordered

The decision prevents the use of the current district plan in future legislative elections and orders the redrawing of districts, though not all districts, for use in 2020 elections. New maps based on 2020 census data would be used in the 2022 redistricting, so the ruling only applies to the upcoming election year.

However, the 2020 election for General Assembly may be especially important, because it will determine the makeup of the legislature that draws district maps for both the General Assembly and the U.S. House of Representatives in the five elections between 2022 and 2030.

In drawing new maps, the court found that legislators could reasonably continue exercising the criteria of not putting incumbents in the same districts to run against one another, as much as possible.

However, the court ruled that legislators cannot look at the results of previous elections in drawing districts for partisan advantage. Lawmakers are also prohibited from using the rejected 2017 map as a starting point for drawing the new map.

According to the decision, legislators have until Sept. 18 to produce acceptable maps, but that could change if the N.C. Supreme Court accepts an appeal of the decision. The superior court indicated it would not stay the decision pending appeal, but this would not prevent a higher court from issuing a stay.

The court said it could exercise discretion for moving primary election dates, which are currently set for March 3, since 2020 is a presidential election year.

Which districts must be redrawn

The court listed the counties in which districts must be redrawn for House elections and Senate elections. Some other districts adjacent to these may also need to be redrawn to balance populations.

In the House, the mandatory new districts will be in Alamance, Anson, Union, Brunswick, New Hanover, Buncombe, Cabarrus, Davie, Montgomery, Richmond, Rowan, Stanly, Cleveland, Gaston, Columbus, Pender, Robeson, Cumberland, Duplin, Onslow, Franklin, Nash, Forsyth, Yadkin, Guilford, Lenoir, Pitt and Mecklenburg counties.

In the Senate, the mandatory new districts will be in Alamance, Guilford, Randolph, Bladen, Brunswick, New Hanover, Pender, Buncombe, Henderson, Transylvania, Davie, Forsyth, Duplin, Harnett, Johnston, Lee, Nash, Sampson, Franklin, Wake and Mecklenburg counties.

Several Wake and Guilford county districts were redrawn more recently under a separate court decision and were exempted from the effect of Tuesday’s ruling.

The new maps must be based on the 2010 federal decennial census data to balance population within a 5 percent deviation. The districts must be contiguous and reasonably compact. Previous court rulings on drawing maps within groups without crossing county lines must also be applied.

The court also directed lawmakers to avoid splitting precincts and pay attention to municipal boundaries.

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