It looks like North Carolina is going the route of Pennsylvania. Since the federal courts refuse to do anything about partisan gerrymandering in the states, a suit has been filed in state court there, where the Supreme Court is now controlled by liberals after the most recent midterm elections. And the Republicans are trying a ludicrous tactic to kill it.
North Carolina Republicans are in trouble. On Nov. 6, voters elected Anita Earls, a civil rights attorney, to the state Supreme Court, cementing a 5–2 progressive majority. One week later, voting rights advocates filed a lawsuit in state court alleging that North Carolina’s gerrymandered legislative districts run afoul of the state constitution. Because the case revolves around the North Carolina Constitution and does not even touch on federal law, Republican legislators would seem to be stuck in the state judiciary, hurtling toward Earls’ court. There is simply no federal question for federal judges to adjudicate.
The North Carolina GOP, however, has never let a legal principle stand in the way of its will to power. And so, on Friday, lawyers for the General Assembly—which is dominated by Republicans thanks to the gerrymander in question—attempted to remove the case to federal court, which has no authority to hear it. This patently frivolous endeavor is not actual lawyering; it is a bald faced effort to run down the clock and prevent the North Carolina Supreme Court from ruling in time for the 2020 election. In effect, Republicans are trying to exploit the federal courts to preserve their own illicit gerrymander for as long as humanly possible.There is no real doubt that North Carolina’s current legislative districts were carved up along partisan lines to favor the GOP. (Today’s districts were redrawn in 2016 and 2017, after the Supreme Court ruled that both congressional and legislative maps were tainted by an illegal racial gerrymander.) Republican Rep. David Lewis, who oversaw the committee in charge of the maps, explained his redistricting philosophy this way: “I think electing Republicans is better than electing Democrats.” He hired the same partisan map-maker, Tom Hofeller, who admitted that he drew the earlier unconstitutional districts “to ensure Republican majorities in the House and Senate.” Lewis compelled the use of “election data” in drawing new legislative maps and shot down an amendment that would’ve barred the manipulation of districts to create partisan advantage. The result is a map that gives Republicans a significant advantage across the state.
As I’ve explained before, the federal courts will sometimes intervene to prevent racial gerrymandering, as they already have in North Carolina, but not partisan gerrymandering. Never mind that the effect is precisely the same. But as in Pennsylvania, the federal courts cannot intervene in a case involving allegations of violating the state constitution. And like a lot of state constitutions, the North Carolina constitution provides stronger and broader protections for voting rights than either federal law or federal judicial precedents. The federal courts will dismiss this case on jurisdiction grounds, just like they did in Pennsylvania, when even a hyper-partisan justice like Alito couldn’t find the grounds to do otherwise.