Democratic court blew it on redistricting
Published December 29, 2022
By John Hood
I’ve been on the redistricting beat a long time. Back in the early 1990s, I wrote numerous articles criticizing the collaboration among Republican and NAACP activists to maximize the number of black-majority districts. After the egregious Democratic gerrymander of 2001, I cheered on the lawsuit that ultimately became the Stephenson v. Bartlett case, which overturned the gerrymander and enforced the state constitution’s rule against unnecessarily splitting counties in legislative maps.
Later I endorsed and helped organize multiple coalitions to reform the process by amending North Carolina’s constitution. Just as the whole-county provision had acted as a check on gerrymandering in Stephenson, we argued that adding other redistricting criteria such as compactness to the constitution could erect additional guardrails against abuses.
What I never believed — and what I still consider a patently fallacious argument — is that North Carolina’s constitution already contained redistricting rules discoverable in such clauses as “all elections shall be free” and “no person shall be denied equal protection of the laws.” We had, after all, spent many years seeking to persuade state lawmakers to place a redistricting-reform amendment on the ballot precisely because the current state constitution did not contain the safeguards in question.
Other reformers disagreed. More to the point, Republicans had won legislative majorities in 2010 — running in districts drawn by the other party, mind you — while a few years later Democrats regained a majority on the North Carolina Supreme Court. State and national Democrats decided they couldn’t pass up the opportunity to sue.
Their federal litigation ultimately hit a dead end. The U.S. Supreme Court declared, correctly, that similarly vague language in the federal constitution did not empower the federal judiciary to police partisan gerrymandering or supplant the role of state legislatures in drawing congressional maps.
Their litigation in the state courts went a different direction, however. Back in February, the four Democrats on the state’s highest court ruled in Harper v. Hall that the North Carolina constitution’s general protections of free elections, equal protection, free speech, and free assembly did, in fact, constitute legitimate grounds for state courts to judge the fairness of districts drawn by the General Assembly — and even for judges to use their own consultants and resources to draw the maps instead.
The practical effect was that the 2022 elections for General Assembly and U.S. House of Representatives were held within districts that were either drawn by court-appointed “special masters” or by legislators subject to a court order. Republicans still won a supermajority in the state senate and came within a seat of winning one in the state house, though Democrats fared better in the congressional races.
That was far from the end of the legal fight. Both the Democratic plaintiffs and Republican defendants were dissatisfied. Both appealed separate elements of the decision. On December 16, the North Carolina Supreme Court issued another decision in Harper v. Hall. Once again by a party-line vote, Democratic justices affirmed their original findings and even threw out the senate districts we just used in the election, ordering the legislature to try again in 2023.
I lack the space to describe in depth the majority and dissenting opinions here. If you’re so inclined, go read them yourself. To my mind, the folly of the Democrats’ original decision is clearly exposed. By liberally construing the state constitution to prohibit what its text clearly does not, and then refusing to spell out specific legal and numerical criteria for lawmakers to follow, the Democratic justices have created an intolerable mess.
And as my John Locke Foundation colleague Andy Jackson has observed, they have also likely doomed the litigation strategy. Whatever happens next year, the defendants are likely to appeal to a new North Carolina Supreme Court with an originalist majority. The Harper v. Hall standard “is a dead man walking,” Jackson predicts.
That doesn’t mean redistricting reform itself is dead. It just means we’ll have to do it the proper way: by amending the state constitution.
John Hood is a John Locke Foundation board member. His latest books, Mountain Folk and Forest Folk, combine epic fantasy with early American history.