A step by step history as to how North Carolina's gerrymandering case ended up in the US Supreme Court
Published June 27, 2019
EDITOR'S NOTE: This piece was submitted prior to the Supreme Court ruling on Thursday, June 27th. Your editor felt the historical aspect was compelling enough to public even after the court ruled.
With the pending decision by the US Supreme Court regarding North Carolina's redistricting & partisan gerrymandering case, the Old North State once again could enter the annuals of history when it comes to redistricting efforts: first, the state dominated the jurisprudence regarding race, redistricting, and racial gerrymandering; now, the state, along with a case out of Maryland, could be one of the lead decisions regarding politics, redistricting, and partisan gerrymandering.
In order to get the full impact of the Supreme Court's decision, it is best to get a sense of how this issue came to dominate the political landscape and how we got to awaiting the final opinion.
Following the 2011's redistricting efforts, led by supermajorities of Republicans in the North Carolina General Assembly and not subject to a governor's review or veto (see NC Constitution, Article II, Section 22, Subsection 5), the initial congressional maps were challenged as racial gerrymandering. That legal challenge ended with the US Supreme Court upholding the lower court's judgment that the congressional district maps were unconstitutional, based on racial gerrymandering (Cooper v. Harris, 2017).
Following the rejection of the congressional maps, Republicans, still with super-majorities in the legislature, went back to redesign the congressional districts and, understanding the role that politics play and that the US Supreme Court has generally been hesitant to enter the "political thicket" of partisan gerrymandering, redrew the maps. A fateful comment was made by Republican representative David Lewis, who chaired the redistricting efforts for the legislature:
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
In an opinion piece, Lewis wrote that the comment was "hyperbolic but necessary" within the pending legal challenges that covered the redistricting effort. At the time Lewis and his fellow Republicans redrew the maps based on partisanship, it seemed that the courts would defer to the legislature and not enter into partisan gerrymandering.
The congressional maps were challenged as too much partisanship in gerrymandering by Common Cause and the League of Women Voters. Following an initial opinion that found the maps were partisan gerrymandered and thus unconstitutional, the case was kicked-back by the US Supreme Court to the lower three-judge panel to answer the question about standing (thanks to another partisan gerrymandering and redistricting case out of Wisconsin).
Finding that the plaintiffs did have proper standing to challenge the maps, the three-judge panel held that the maps violated the US Constitution in three provisions: the 14th Amendment's Equal Protection Clause, the 1st Amendments freedom of speech, and Article I's Election Clause.
In taking up this partisan gerrymandering case, as noted by SCOTUS Blog's Amy Howe, the U.S. Supreme Court is considering three questions:
Whether the challengers have a legal right to bring their case at all (the issue of standing); whether partisan-gerrymandering claims are the kind of claims that courts can take up (the issue of justiciability, or whether the court will enter what they call "political questions" that are better left up to the elected branches of government), and,
if the answer to the first two questions is yes, whether the North Carolina map is the product of partisan gerrymandering.
So, there are two key questions that the court had to address before getting to the meat of the issue: first, do the plaintiffs in the case (represented by Common Cause and League of Women Voters) have the legal 'standing' to challenge the maps? This case was sent back last year to the three judge panel to determine if the plaintiffs had standing, per the Court's ruling in another partisan gerrymandering case from Wisconsin.
In their second opinion (running 321 pages long) on NC partisan gerrymandering, the judges, after spending 33 pages outlining the history of the case, use the three provisions of the U.S. Constitution to determine if the plaintiffs were legally "injured" by the partisan nature of the map. And after 44 pages of analysis, the judges did find the plaintiffs were injured and had standing. Thus, per the lower court's findings, the answer to question one is "yes."
The second question focuses on the issue of "justiciability," or whether certain factors are met in order for the courts to hear a legal challenge. One of the key factors regarding partisan gerrymandering is the issue of "political question" of a potential case. In layman's terms, if the case presents what the Court deems to be one that has "too much politics" in trying to resolve the case, the Court would defer to the other branches (i.e., political/elected) of government deal with resolving the issue at hand.
Much of this has to do with a "judicially manageable standard" by which a court can render a decision and relief to the plaintiffs; that is, try to find a solution that the courts can implement to resolve the legal issue. In this case, the lower court found that there were such standards available, and granted the case as a "justiciable" one for them to decide. So, in short, the judges answered "yes" to questions two and three. Now it's up to the U.S. Supreme Court to determine their own answers to the three questions.
Since the case dealt with redistricting, an appeal from the three-judge panel goes directly to the U.S. Supreme Court, which heard oral arguments in late March of 2019. Following oral arguments, the Court typically goes into a "conference," where the nine justices are alone and debate the case amongst themselves, to find where each justice stands on the issues presented, how the law should be applied in the case, and then determine what the preliminary vote will be on the case.
Once the preliminary vote is taken, if the Chief Justice is in the majority, he may do one of two things: assign the majority opinion to himself, or to another justice in the majority. If the Chief Justice is not in the majority, the senior associate justice will take the task of writing the opinion, or assign it to another justice in the majority.
That begins the writing phase of the opinion. The author of the opinion crafts a draft, and then circulates it to the other justices. This is potentially where the 'politics' of the High Court comes into play, as justices may seek to have language changed, added, or perhaps present their own opinion, in the form of a concurrence, that respects the final outcome/vote, but goes in a different legal approach than the majority.
Justices on the minority side of the case have the opportunity to present their views on the case, through dissenting opinions, and perhaps bring wavering justices to their side--which may cause a recalibration of the vote if it was a close one originally (say 5-4 either way).
So, we are awaiting the final opinion, on the final day of the Court's term, on Thursday, June 27. It is literally anyone's guess how this opinion will go, but we'll find out shortly after 10 AM on Thursday if North Carolina yet again makes history in constitutional law jurisprudence regarding redistricting.