Democrats eye move against GOP congressional gerrymandering in North Carolina

A three-panel judge slammed partisan gerrymandering in the state Tuesday, reviving advocates' hopes of new House maps ahead of 2020.

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By Jane C. Timm

North Carolina Democrats and voting rights advocates are weighing last-minute challenges to the state's congressional voting maps after a three-judge panel rebuked extreme partisan gerrymandering in the state.

The judges, in a 357-page sharply worded ruling Tuesday, threw out the state's legislative districts maps, writing that GOP lawmakers' partisan intent in drawing the maps, the "surgical precision" with which they were executed and the distinct advantage the maps gave to Republicans violated the state’s constitution.

While the ruling does not directly apply to the state's congressional district maps, experts and voting rights advocates said the implications are clear. North Carolina Democratic Party Communications Director Robert Howard told NBC News on Wednesday that the party is considering a suit to push for new House voting maps ahead of the 2020 election.

“We do believe that the precedent set by yesterday’s decision applies to the congressional districts,” Howard said. “We're evaluating all our options.”

Common Cause, the watchdog group that filed the lawsuit over the state's legislative maps, is also considering a challenge to the congressional maps, said Dan Vicuña, the organization's national redistricting manager. Vicuña said it was unclear if Common Cause would team up with Democrats.

North Carolina — a purple state — is currently represented by nine Republicans and three Democrats in Congress, thanks to careful, Republican-drawn districts that advocates say are heavily gerrymandered.

Any challenge would have to be mounted fast, however: There’s just six months left before the 2020 primary in the state, and candidates are already running for Congress based on the old maps. Maps secured through litigation would be short-lived — after the 2020 Census, a completely new set of maps will be drawn in 2021.

But Howard said Democrats are eager for fairer maps, even if it means some short-term discomfort in the upcoming primary.

“We’re still kind of digesting the decision from last nights,” he said. “If we did go down that path, it would be within the coming weeks.”

Tuesday’s ruling was a huge win for voting rights advocates, who say that gerrymandering — the process of drawing district maps to favor a party or politician — undermines democracy by allowing lawmakers to pick the voters. Though the Supreme Court declined to weigh in on partisan gerrymandering in North Carolina’s congressional districts earlier this summer, saying federal courts shouldn’t police the issue, the state court's smackdown has revived advocates' hopes of a remedy.

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“There’s no reason why these clauses wouldn’t apply with legal force for the drawing of congressional districts,” Michael Li, senior counsel at the Brennan Center for Justice at New York University, told NBC News. The state court found that the Republican-drawn legislative maps violated the state’s constitutional protections of free elections, free speech and assembly, and equal protection under the law.

“It doesn’t make sense logically for those to be limited to legislative districts,” Li added.

So far, Republican lawmakers have not made public plans to appeal Tuesday's ruling.

Under the wire before 2020

While the court said it reserved the right to move the primary if needed to accommodate the new state legislative districts, moving primaries is disruptive and any new legal challenge would have to weigh that.

"It’s later in the cycle than we would have liked to start litigation, since we initially challenged in federal court," Vicuña said, adding that Common Cause would make a decision in "weeks, tops."

Elisabeth Theodore, one of the lead attorneys in the Common Cause suit, said past legal challenges to North Carolina's congressional districts would aid a future suit.

“There’s been a lot of work done to show that the congressional maps in North Carolina were partisan gerrymanders,” she told NBC News. “So anybody bringing that [challenge] would have a lots of facts already established, ready to rely on.”

Li said that the evidence of partisan gerrymandering in the state’s congressional districts is “starker” than it was in the case of the state legislative districts that were thrown out on Tuesday.

“They were really brazen,” Li said, pointing to a remark from a Republican lawmaker on the aims of the congressional maps.

“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,” state Rep. David Lewis, senior chairman of the North Carolina's House of Representatives redistricting committee, was quoted as saying in a transcript of a committee meeting when the legislature was forced by courts to rework the maps for a second time in 2016.

“They weren’t trying to hide it, they were almost bragging about it," Li said.

A model for the nation

Advocates say the North Carolina ruling — a stinging condemnation of partisan gerrymandering — also offers a model for other state's gerrymandering lawsuits.

“At this point, there are two state level decisions finding that partisan gerrymandering violates state constitutions – there’s the Pennsylvania decision and this decision – they really provide a roadmap for further state level challenges at the legislative level and the congressional challenge,” said Theodore.

According to the National Conference of State Legislatures, some 30 states have fair election clauses in their state constitutions that could be targeted in gerrymandering legislation in the future, but Theodore said the court’s ruling that partisan gerrymandering violated free speech and equal protections clauses is particularly significant.

“Those are provisions that every state in the country has in their constitution,” Theodore told NBC News. “The North Carolina court analysis really provides a road map for success in other states.”

Vicuña said Common Cause is already looking toward 2021, identifying where partisan gerrymandering may take place and where state constitutions might give them an opening to challenge it.

"It’s going to be an exciting time for voter empowerment after the next lines are drawn," Vicuña said. "We have a good handle on where there’s going to be single-party control, where the state constitution has been interpreted in a pro-voter matter, where we can ask the court to change precedent where that’s the case."