In its 2019 decision in Rucho v. Common Cause, the U.S. Supreme Court closed the door on federal justiciability of partisan gerrymandering claims.[1] At the same time, however, it all but invited state courts to attempt to resolve redistricting questions on their own, noting that “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”[2] In response, state courts are increasingly wading into politically dicey waters to address partisan gerrymandering claims predicated solely on state law, but that present many of the same justiciability questions as previous federal lawsuits. A signal example of this phenomenon arose earlier this year in Harper v. Hall, where the North Carolina Supreme Court struck down the new state legislative and congressional district maps enacted by the General Assembly based upon its interpretation of several state constitutional provisions.[3]

In November 2021, following the release of population data from the decennial census, the North Carolina legislature passed maps redrawing state legislative and congressional districts. Days after the new maps were adopted, plaintiffs—voters and a voter advocacy group—filed two lawsuits challenging their constitutionality under North Carolina’s state constitution; the two cases were consolidated.[4] Following an extensive trial before a three-judge panel, the trial court found that the enacted maps were “extreme partisan outliers” that resulted from “intentional, pro-Republican partisan redistricting.”[5] Despite its factual finding of a partisan gerrymander, the trial court acknowledged that “redistricting is an inherently political process” that “is left to the General Assembly.”[6] After rejecting each of plaintiffs’ constitutional challenges to the maps, the trial court concluded that North Carolina’s “Constitution does not address limitations on considering partisan advantages in the application of its discretionary redistricting decisions and Plaintiffs’ claims on the basis of ‘extreme partisan advantage’ fail.”[7] The trial court went on to find that redistricting “is one of the purest political questions which the legislature alone is allowed to answer,” and that judicial intervention “would be usurping the political power and prerogatives of an equal branch of government.”[8] Therefore, the trial court held, plaintiffs’ partisan gerrymandering claims were nonjusticiable.[9]

The plaintiffs appealed the three-judge panel’s decision, and the North Carolina Supreme Court, in a 4-3 decision, reversed and sent the case back to the trial court for remedial maps. Writing for the majority, Justice Robin Hudson found that North Carolina courts could resolve political questions surrounding the redistricting process.[10] Although the majority stressed that the court was “only upholding the rights of individual voters as guaranteed by” North Carolina’s constitution,[11] it argued that “the courts” are the only mechanism for resolving partisan disputes in a state like North Carolina where there is no “citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments.”[12] In expressing this view, the North Carolina Supreme Court “emphatically disagree[d]” with the trial court’s conclusion that judicial action in partisan redistricting cases would “usurp[] the political power and prerogatives” of the state’s legislature.[13] Adopting the factual findings of the trial court that the legislature’s enacted redistricting plans were “egregious and intentional partisan gerrymanders” that favored Republicans, the majority declared “the beating heart” of its opinion was its conclusion that such partisan gerrymanders violate “the individual rights of voters to cast votes that matter equally.”[14]

The majority’s opinion offers several important insights into how state courts may view their role in the redistricting process. As an initial matter, the court easily determined that the plaintiffs had standing to bring their claims under North Carolina’s permissive standing test, which requires only that plaintiffs allege a violation of a constitutionally protected legal right.[15] The court then turned to the intricate question of whether partisan gerrymandering claims present nonjusticiable, purely political questions under North Carolina law.[16] In grappling with that question, the majority defined “purely political questions” as both those “which have been wholly committed to the ‘sole discretion’ of a coordinate branch of government,” and those that require the making of “policy choices and value determinations” to resolve.[17] Such purely political questions, the majority said, “are not susceptible to judicial resolution.”[18]

Rejecting an invitation to adopt the Rucho nonjusticiability standard in state court,[19] the North Carolina Supreme Court determined that partisan gerrymandering questions were not committed to the “sole discretion” of the state legislature.[20] Although the North Carolina Constitution vests the state’s map drawing authority with the legislature,[21] the court noted that it has previously interpreted and applied constitutional limits on the legislature’s redistricting power.[22] The defendants also pointed to the court’s precedent recognizing that the legislature “may consider partisan advantage and incumbency protection in the application of its discretionary redistricting decisions,” but the court rejected their argument that this should remove partisan gerrymandering claims from judicial review.[23] Claiming the defendants “misread” this precedent, the majority instead insisted that it had only concluded “that federal law permitted” the consideration of partisanship.[24] Although the legislature is tasked with drawing the maps under the North Carolina Constitution, the question of whether it complied with constitutional limitations in exercising that power is not committed to the legislative branch.[25] Therefore, the majority reasoned, it was a question appropriate for judicial review.

Having resolved the threshold questions of standing and justiciability, the majority turned to evaluating the plaintiffs’ partisan gerrymandering claims on the merits in light of four provisions of the state’s constitution: the Free Elections clause, Equal Protection clause, Free Speech clause, and Freedom of Assembly clause. In evaluating plaintiffs’ constitutional claims, the majority declared that “the fundamental principle of political equality underpinning” certain guarantees of the North Carolina Constitution’s Declaration of Rights “guide[d]” its constitutional interpretations.[26] Shunning “a literal, narrow, or technical interpretation,” the court infused these provisions with “broad and liberal principles designed to ascertain the[ir] purpose and scope.”[27]

The majority determined that partisan gerrymandering violated all four constitutional provisions. It first considered the Free Elections clause, noting that the clause has no federal analogue and simply provides that “[a]ll elections shall be free.”[28] Reviewing the history of the Free Elections clause, and relying on a Pennsylvania Supreme Court opinion evaluating a similar clause in its state constitution, the North Carolina Supreme Court reasoned that the clause was intended to protect “the right of the people to fair and equal representation” in government.[29] However, in evaluating the history of the clause, the majority emphatically rejected any “attempt to fix the meaning of these provisions by sole reference to the practices thought permissible at the time they were enacted”; to do so would be “inconsistent with hundreds of years of constitutional development,” and also with the people’s constitutional “choice to espouse broad principles rather than narrow rules.”[30] The majority concluded that “for an election to be free and the will of the people to be ascertained, each voter must have substantially equal voting power and the state may not diminish or dilute that voting power on a partisan basis.”[31]

Similarly, the majority found that partisan gerrymandering violates the Equal Protection clause of the North Carolina Constitution, unless it can satisfy strict scrutiny. Cognizant that the state equal protection provision mirrors its federal counterpart, the court relied on its authority to construe its state constitution to afford greater protection than federal law, but not less.[32] The majority concluded that the state Equal Protection clause protects against partisan gerrymandering by mandating a “fundamental right to vote on equal terms,” which includes a right to “substantially equal voting power” which cannot be reconciled with partisan gerrymandering.[33] Finally, reasoning that partisan gerrymandering is a form of viewpoint discrimination that “subjects certain voters to disfavored status based on their views,”[34] the majority concluded that unless it can satisfy strict scrutiny, partisan gerrymandering violates the Free Speech and Freedom of Assembly clauses of North Carolina’s Constitution, construing them to provide more protection than their federal analogues.[35]

Finally, the court rejected the defendants’ argument that the federal Constitution’s Elections Clause—which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature”—should foreclose the plaintiffs’ claims.[36] Pointing to Rucho’s proposition that “state constitutions can provide standards and guidance for state courts to apply,”[37] the majority paid little attention to this argument in light of “a long line of decisions by the Supreme Court of the United States [that] confirm the view that state courts may review state laws governing federal elections to determine whether they comply with the state constitution.”[38]

Having determined that four provisions of North Carolina’s constitution prohibit partisan gerrymandering, the majority concluded that the maps enacted by the North Carolina legislature in 2021 constitute partisan gerrymandering and subjected each to strict scrutiny. Concluding that the state legislative and congressional maps exhibit “extreme partisan bias” and are not “calibrated toward advancing some compelling neutral priority,” the court held they violated the state constitution and halted their use in any future elections.[39] Giving the legislature another opportunity to enact constitutionally compliant maps, the court sent the case back to the three-judge trial court for ultimate resolution.[40]

Writing in dissent, three justices departed from the majority opinion on the threshold question of justiciability, arguing that “[t]o be unconstitutional, an act of the General Assembly must violate an explicit provision of [the state] constitution beyond a reasonable doubt.”[41] The dissent found relevant the factors adopted by the U.S. Supreme Court in Baker v. Carr[42] for determining whether a case presents a nonjusticiable “political question,” and it argued that the majority’s reasoning ran afoul of the Baker factors in at least two ways. The dissent argues that the North Carolina Constitution unequivocally delegates the General Assembly plenary power over redistricting, and that it fails to articulate any judicially manageable standard that could be used to evaluate the constitutionality of an alleged partisan gerrymander.[43]

First and foremost, the dissent argued the majority erred in discerning a justiciable controversy . The dissent disputed the majority’s interpretation of the foundational North Carolina case Bayard v. Singleton,[44] arguing that Bayard holds only that a statute adopted by the General Assembly “cannot abrogate an express provision of the constitution because the constitution represents the fundamental law and express will of the people.”[45] It does not, however, “support the proposition that this Court has the authority to involve itself in a matter that is both constitutionally committed to the General Assembly and lacking in manageable legal standards.”[46]

The dissent argued that the four constitutional provisions upon which the majority relied were too vague to provide the court with a clear standard for evaluating the map enacted by the General Assembly. Although the state constitution does contain some judicially manageable objective criteria that courts can enforce against legislative redistricting maps—such as equal population and contiguity requirements[47]—it says nothing about partisan gerrymandering.[48] The dissent drew a contrast between the North Carolina Constitution’s silence on this question and more explicit anti-gerrymandering provisions like those found in the Florida Constitution and cited approvingly by the Supreme Court in Rucho.[49] By contrast, the dissent claimed the majority adopted “a statewide proportionality standard” premised upon a “vague notion of fairness” that failed to explain “how to measure whether groups of voters are of equal size or how to predict the results an election would produce.”[50] The dissent also objected to the majority’s assumptions that “voters will vote along party lines in future elections,” “that party affiliation can change at any point,” and that “a voter’s interests can never be adequately represented by someone from a different party.”[51]

Beyond a lack of judicially manageable standards, the dissent also cited the plain text of applicable separation of powers provisions as a reason for letting the General Assembly’s map stand. The dissent noted that the Elections Clause of the U.S. Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof,” subject to override by the U.S. Congress.[52] Similarly, the state constitution “plainly commits redistricting responsibility to the General Assembly” by requiring the legislature to decennially “revise” state senate and house districts.[53] In the face of such a clear commitment of redistricting power to a different branch of state government, the dissent found the state supreme court “not constitutionally empowered nor equipped to formulate policy or develop standards for matters of a political, rather than legal, nature.”[54]

The dissent did not contend that constitutional separation of powers provisions will forever prohibit the state constitution from banning partisan gerrymandering, only that any such prohibition will have to be enacted by the people through the standard amendment process. Rejecting the majority’s “evolving understanding” of the state constitutional provisions at issue, the dissent countered that “[t]he best way to honor the ‘will of the people’ is to interpret the constitution as written and as the drafters intended.”[55]

As partisanship and polarization drive redistricting processes across the country—including in states that have adopted ostensibly independent redistricting commissions—state courts will increasingly be called upon to resolve redistricting controversies.[56] In adjudicating these cases, state courts will have to apply unique state law redistricting criteria in a manner that does not run afoul of the state legislatures’ redistricting authority as delegated by the federal Elections Clause. This is a difficult undertaking because, as in North Carolina, state courts often lack precedent interpreting vague state constitutional provisions.

The very ambiguity of the underlying statutory provisions can tempt judges to supply an interpretation of state law that enables them to achieve policy goals through the judicial process. Historically, the question of whether a state should ban partisan gerrymandering has been recognized as the kind of “initial policy determination of a kind clearly for nonjudicial discretion.”[57] Here, however, the majority concluded that a ban on partisan gerrymandering was a desirable policy and one it did not believe the state legislature was incentivized to enact.[58] Whether or not one agrees with the North Carolina Supreme Court’s interpretation in Harper, it is easy to see how such sweeping interpretations could be used to justify future judicial intervention in state redistricting processes.

Finally, increasing state court involvement in redistricting is guaranteed to heighten the salience of state supreme court races in states where those offices are elective, and potentially incentivize more partisan candidates for those positions even in states where the positions are formally nonpartisan. The desirability of elections as a mode of judicial selection is beyond the scope of this article, but it remains a relevant consideration for those analyzing state court redistricting decisions.

** Holtzman Vogel filed two amicus briefs, one on behalf of the National Republic Redistricting Trust and one on behalf of the Republican National Committee, NRCC, and North Carolina Republican Party, before the United States Supreme Court supporting the North Carolina legislature in its emergency application for a stay of the North Carolina Supreme Court’s decision. **[NG1] [KM2] 



[1] 139 S. Ct. 2484 (2019).

[2] Id. at 2507.

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

[4] Id. at 513-14.

[5] Id. at 515.

[6] Id. at 524.

[7] Id. at 525.

[8] Id. at 526.

[9] Id. The trial court also rejected plaintiffs’ claims of intentional racial discrimination, finding the burden to establish that race was a predominant motivating factor in drawing the maps was not met, and of racial vote dilution, finding plaintiffs’ claim was “without an evidentiary or legal basis.” See id.

[10] Id. at 528.

[11] Id. at 511.

[12] Id. at 509.

[13] Id. at 510.

[14] Id.

[15] Id. at 528-29.

[16] Id. at 529.

[17] Id. at 529

[18] Id.

[19] See id. at 533.

[20] Id.

[21] See N.C. Const. Art. II, § 3 (The General Assembly “shall revise the senate districts and the apportionment of Senators among those districts”); N.C. Const. Art. II, § 5 (The General Assembly “shall revise the representative districts and the apportionment of Representatives among those districts”).

[22] Harper, 868 S.E.2d at 533-34.

[23] Id. at 534 (quoting Stephenson v. Bartlett, 562 S.E.2d 377, 390 (N.C. 2002)).

[24] Id. (emphasis in original).

[25] Id. at 535.

[26] Id. at 539.

[27] Id. at 540 (quoting Elliott v. State Bd. of Equalization, 166 S.E. 918, 920-21 (N.C. 1932)).

[28] Id.; see also N.C. Const. art. I, § 10.

[29] Harper, 868 S.E.2d at 540-41 (quoting League of Women Voters v. Commonwealth, 178 A.3d 737, 806 (Pa. 2018)).

[30] Id. at 542.

[31] Id. Joining fully with the majority opinion, Justice Michael Morgan, joined by Justice Anita Earls, wrote a brief concurrence to add his “view [that] the dispositive strength of the Free Elections Clause warrants additional observations.” Id. at 562 (Morgan, J., concurring). Namely, that “a free election is uninhibited and unconstrained in its ability to have the prevailing candidate to be chosen in a legislative contest without the stain of the outcome’s predetermination.” Id. at 563.

[32] Id. at 542-43.

[33] Id. at 543 (citations omitted)

[34] Id. at 546.

[35] Id. at 544.

[36] U.S. Const. art. I, § 4, cl. 1.

[37] Harper, 868 S.E.2d at 551-52 (quoting Rucho, 139 S. Ct. at 2507).

[38] Id. at 552 (citation omitted).

[39] Id. at 552, 555, 556, 558. The majority further concluded that under its precedents the legislature was required to conduct a racially polarized voting analysis prior to drawing lines, which it failed to do. Id. at 558.

[40] Id. at 559.

[41] Id. at 563 (Newby, C.J., dissenting).

[42] 369 U.S. 186 (1962).

[43] See Harper, 868 S.E.2d at 566, 570-72 (Newby, C.J., dissenting).

[44] 1 N.C. 5 (1787).

[45] Harper, 868 S.E.2d at 565 (Newby, C.J., dissenting) (emphasis added).

[46] Id.

[47] See N.C. Const. art. II, § 3.

[48] Harper, 868 S.E.2d at 572 (Newby, C.J., dissenting).

[49] Id. at 569-70.

[50] Id. at 571.

[51] Id.

[52] See U.S. Const. art. I, § 4, cl. 1.

[53] Harper, 868 S.E.2d at 572 (Newby, C.J., dissenting) (quoting N.C. Const. art. II, §§ 3, 5).

[54] Id.

[55] Id. at 589.

[56] See Jahd Khalil, Redistricting Commission to Miss Last Deadline; Supreme Court to Choose Special Masters, WVTF (Nov. 8, 2021) (detailing the Virginia commission’s failure to come to an agreement on final maps by the statutory deadline).

[57] Baker, 369 U.S. at 217.

[58] See Harper, 868 S.E.2d at 509 (explaining that in North Carolina, “the only way that partisan gerrymandering can be addressed is through the courts”) (emphasis added).

 

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