The Gerrymandering Showdown

“All elections shall be free.” It’s a five-word clause from section one of North Carolina’s state constitution, originally written in 1776, offering the hopeful guarantee that elections “ought” to be free, then strengthened by voters in 1971 with a direct, affirmative command. 

But what does “free” mean? What would interfere with an election to make it so that it’s no longer free? Is it enough to be allowed to vote? Does free mean honest, or fair? If so, by what standard? 

North Carolina’s modern redistricting wars have stretched over parts of four decades. Most recently, in fall 2019, and then earlier this month, two different three-judge panels examined those five words, studied the history, and heard from many of the same expert witnesses. 

Then, over some 657 pages of legal reasoning, the panels reached two nearly opposite conclusions. 

The two 2019 decisions—reached by Paul C. Ridgeway, Joseph N. Crosswhite, and Alma L. Hinton—unanimously overturned the state’s 2017 legislative maps as an unconstitutional partisan gerrymander, and then forced the 2017 congressional map to be redrawn ahead of the 2020 elections. 

An election on an extremely gerrymandered map, they found, is not free and cannot honestly capture the public will.

Those maps expired with the new census, and earlier this month, in North Carolina League of Conservation Voters v. Hall, a different three-judge panel—A. Graham Shirley, Nathaniel J. Poovey, and Dawn M. Layton—unanimously upheld the latest maps drawn by the Republican Party, which will go into effect for this year’s elections. The panel maintained that the constitution leaves mapmaking to the legislature, and that the election clause’s use of “free” had nothing to do with districting at all. The League of Conservation Voters, along with Common Cause, appealed to the state Supreme Court. 

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From left, Superior Court Judges Nathaniel Poovey, Graham Shirley and Dawn Layton listen to testimony during a partisan gerrymandering trial over North Carolina’s new political maps Monday, Jan. 3, 2022 // Photo by Travis Long, The News & Observer via AP

Now the seven elected justices—four Democrats and three Republicans—will consider those five words when oral arguments begin on Wednesday. The stakes are high: The court’s decision will help determine how competitive North Carolina’s legislative and congressional elections will be for the next decade, and will impact many policy decisions over that time—from public health and education to the environment and access to abortion. 

It will reverberate nationally as well. Democrats hold a slender five-seat edge in the U.S. House. According to some experts, the GOP-drawn Congressional map could push the state’s delegation from 8-5 Republican all the way to 11-3, which would give Republicans three of the seats they need to flip the chamber in the fall midterms. (Because it is a fast-growing state, North Carolina has gained a 14th U.S. House seat, starting with this year’s elections.)

The decision by the North Carolina Supreme Court will also show whether state supreme courts—and similar “free election” clauses in other state constitutions—might provide a pathway for anti-partisan gerrymandering reforms, now that the U.S. Supreme Court closed the federal courts as an avenue to decide whether partisan gerrymandering is legal. 

“It’s the last game left,” Rebecca Green, co-director of the Election Law Program at the College of William & Mary, told The Assembly. “I just don’t think state supreme courts will be as reticent to hear these claims. I assume that they will take the Chief Justice [John Roberts] up on his suggestion to arbitrate these arguments based on their state constitutions.”

Questions this fundamental, about a right as foundational as the vote, should perhaps have clearer answers by now, almost 250 years into the American experiment. Yet they have only grown more complex and contentious. Like this one: When partisan gerrymandering can determine winners and losers for a decade at a time, creating results that blur or distort the will of the people, can those elections still be considered free?

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The state Superior Court judges who decided the 2019 cases and the 2022 case agreed on this: Partisan gerrymandering is repugnant. Those judges are from both political parties. They agreed with the leading scholars and cutting-edge mathematicians, both in 2019 and 2022, who produced what both courts found to be compelling evidence that Republicans had engineered themselves advantages unlikely to be reversed at the polls. 

Only the 2019 panel, however, found that the North Carolina Constitution allows the courts to do anything about it. 

Meanwhile, they disagreed on nearly everything else. Read together, the two decisions tell two different stories about the roots of North Carolina’s constitution during the colonial era, the intent of the founders, the role that the state’s courts should play in the system of checks and balances, the essence of representation, and what it means to cast a ballot—even the role that U.S. Supreme Court decisions should play in state jurisprudence. 

The state Supreme Court could embrace the thinking from either of these decisions, or chart its own path, but it will ultimately determine which of these two distinct visions prevails.

The Ridgeway panel began by recognizing the constitutional authority of the General Assembly to draw maps. However, they assert that this power, much like any other governmental act or legislation, is subject to judicial checks and balances. The state constitution, they note, grants N.C. citizens broader rights around free elections, equal protection and free association than the U.S. constitution. 

Lawmakers do not enjoy “unfettered” power to draw whatever maps they like; meanwhile, that same constitution, the judges write, entrusts the judiciary with the responsibility to weigh evidence and ensure that the legislature’s actions adhere to those standards. 

The court determined that evidence proved the legislature’s intent was to perpetuate Republican control with “surgical precision” and to “dilute the collective voting strength” of Democrats with maps that are “extreme outliers” when compared “on a district by district level to virtually all other possible maps that could be drawn with neutral, non-partisan criteria.” 

“In other words,” the judges wrote, “the Court finds that in many election environments, it is the carefully crafted maps, and not the will of the voters, that dictate the election outcomes.” The question, they suggested, is whether that conduct and legislation is incompatible with the protection that all North Carolina elections “shall be free.”

That free-elections clause, the panel found, is one of the bulwark protections that expands on the rights granted in the U.S. Constitution and represents “a cornerstone of our democratic form of government.” The court traced its roots back to the 1689 English Bill of Rights, and demands for a “free and lawful parliament” after the crown’s efforts to gerrymander parliamentary elections inspired a revolution. 

Citing precedent from the landmark 1915 case Hill v. Skinner, among others, the panel said the state Supreme Court has consistently held that “the object of all elections is to ascertain, fairly and truthfully, the will of the people,” and elevated this protection to a “compelling interest.”

Those five words in the free-elections clause, they concluded, defined its meaning more broadly: “Elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”

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Activists at the Supreme Court opposed to partisan gerrymandering hold up representations of congressional districts from North Carolina and Maryland, March 26, 2019 // Photo by Carolyn Kaster / AP Photo

In what is perhaps the key finding, the court held that partisan gerrymandering “strikes at the heart” of that constitutional protection and ensures that it is “the will of the map drawers that prevails” over the will of the people.

“It is clear to the Court that extreme partisan gerrymandering—namely redistricting plans that entrench politicians in power, that evince a fundamental distrust of voters by serving the self-interest of political parties over the public good, and that dilute and devalue votes of some citizens compared to others—is contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” 

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This month’s ruling, also a unanimous decision, and not bound by the 2019 cases, rejected that history, analysis, and interpretation. These three judges, a bipartisan panel led by Shirley, carefully examined dozens of legislative and congressional districts, and over and over, found that they are “the result of intentional, pro-Republican partisan redistricting.” The judges explicitly rejected that the state’s political geography caused the maps to be imbalanced naturally. 

But they also dismissed the 2019 panel’s reading of the free-elections clause, the equal protection and freedom of assembly provisions, and even whether the courts should be involved in policing redistricting at all. The relevant issue, they wrote, is that the state constitution awards the power to redistrict as the “exclusive province of the legislature.” 

“It is not the function of the judiciary to express the will of the people or to right perceived wrongs allowed by laws that public sentiment deems unwise or ill-advised,” the panel concluded. “The Court is not excused or relieved from this analytical framework because we disagree with the result it brings or even find personally repugnant.”

The framers of the free-elections clause, they found, cannot plausibly have been thinking about redistricting. They conclude that there is no historical record to support that the 1689 English Bill of Rights—aimed at the King and not Parliament—intended to put any restrictions on legislative bodies when it came to drawing district lines. Indeed, Parliament allowed the so-called “Rotten Boroughs” to exist for another 150 years, passing seats along as family heirlooms from districts with few English voters. 

The framers of the North Carolina Constitution’s thinking on free elections, they noted, was informed by Virginia’s founding documents. Patrick Henry, who helped draft those early inalienable rights, engaged in some of the nation’s first gerrymanders, trying to keep James Madison out of our first Congress. Madison did not protest. 

“If the two men who were responsible for approving the clause did not think it applied to partisan gerrymandering,” the judges concluded, “this Court is certainly hesitant to do so.” (Here, the 2022 Shirley panel seemed to be holding a conversation with the 2019 Ridgeway panel, which noted, in contrast, that “Long standing, and even widespread historical practices do not immunize governmental action from constitutional scrutiny.”)

Furthermore, the Shirley panel wrote that the Virginia and North Carolina framers had a narrow definition of “free” in this election clause. Their meaning was simple: free from interference or intimidation. So was the solution: hold frequent elections. The free-elections clause, with that history, cannot be construed to have had any intent to limit partisan gerrymanders and certainly not to “bring about a fundamental change” to a power assigned to the legislature.

This panel took a similarly narrow view of the rights of equal protection, assembly, and free speech. Where the 2019 panel held that “equal protection” meant the right to “equal voting power,” these judges found that “nothing about redistricting affects a person’s right to cast a vote.” (Here, too, the judges seem to almost be in dialogue: The Ridgeway panel wrote, “The fact that Democratic voters can still cast ballots under gerrymandered maps changes nothing. The government unconstitutionally burdens speech where it renders disfavored speech less effective, even if it does not ban such speech outright.”) 

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Several dozen members of the public wait to address state lawmakers during a public comment hearing on Senate and House legislative redistricting maps Oct. 25, 2021 // Photo by Travis Long, The News & Observer via AP

Moreover, the Shirley panel wrote, if the framers of the most recent state constitution intended to apply the equal protection clause to redistricting, and affect a fundamental political power granted to the legislature, they would have said so. 

“This Court neither condones the enacted maps nor their anticipated potential results. Despite our disdain for having to deal with issues that potentially lead to results incompatible with democratic principles and subject our State to ridicule, this Court must remind itself that these maps are the result of a democratic process,” they concluded. 

They also pointed to the 2019 U.S. Supreme Court decision in Rucho v Common Cause, another case that originated in North Carolina, in which a 5-4 court closed the federal courts to partisan gerrymandering claims. 

Redistricting “is one of the purest political questions which the legislature alone is allowed to answer,” the Shirley panel wrote. “Were we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government.”

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Now this key question heads to the North Carolina Supreme Court: Can the state’s free-elections clause and other related protections be used to disallow extreme gerrymanders? Or is the power to draw lines vested solely with the state legislature?

In his Rucho decision, U.S. Chief Justice Roberts appeared to welcome the involvement of state supreme courts to adjudicate maps under their own state constitutions. He insisted that closing the federal courts did not “condemn complaints about districting to echo into a void.” 

The chief justice specifically noted that “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” and pointed to a Florida Supreme Court decision that struck down parts of its state congressional map in 2015 as a violation of a fair districts provision. 

Earlier this month, Ohio’s state Supreme Court struck down the Republican legislature’s congressional and state legislative maps as a violation of specific constitutional language governing redistricting, as well. (The Republican chief justice joined the court’s three Democrats in the 4-3 decision.)

The challenge facing the North Carolina Supreme Court is more complicated and leaves more room for interpretation. Ohio and Florida have constitutional language mandating a process that does not favor or disfavor either political party. North Carolina has a five-word “free elections” clause that two courts, both equally frustrated with the anti-democratic outcomes generated by partisan gerrymandering, divined quite differently.

Perhaps the most similar case comes from Pennsylvania. In 2017, an array of citizens and public interest attorneys challenged the state’s congressional map—which consistently produced 13-5 Republican delegations in the competitive state—as an unconstitutional partisan gerrymander under the state constitution. They relied on a similar “fair elections” clause as the North Carolina organizations. In Pennsylvania, the clause is six words, stating simply that “Elections shall be free and equal.”

The Pennsylvania Supreme Court, controlled by Democratic justices, found the gerrymandered map incompatible with free and equal elections; it struck down the map in January 2018

“An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal,’” wrote Justice Debra Todd. “A diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation.”

New court-ordered maps, drawn by a neutral “special master,” transformed Pennsylvania’s congressional landscape. The new map produced nine Democrats and nine Republicans in 2018, an outcome more closely reflecting the state’s political balance. 

“It shows that it’s not so hard for justices to rule partisan gerrymandering unconstitutional, and to strike down a map and order a new one,” said Daniel Jacobson, one of the victorious attorneys. “It was seen as, ‘Oh, this is so impossible to do.’ It’s actually what courts do best: evaluate evidence.”

But first, those seven North Carolina Supreme Court justices must evaluate the five-word free-elections clause—with the next 10 years of state politics, and possibly the partisan control of Congress, hanging on the outcome. 

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David Daley, formerly the editor of Salon.com, is the author of Ratf**ked: Why Your Vote Doesn’t Count, and Unrigged: How Americans Are Battling Back to Save Democracy*.* 

He is a senior fellow for FairVote, a research group that, among other issues, advocates for ranked-choice voting, in which voters rank candidates by preference. The group’s website includes an endorsement of ranked-choice voting from Anita Earls, a Democratic member of the North Carolina Supreme Court.