Summary

Redistricting

Source: Wikipedia

Redistricting in North Carolina has been a controversial topic due to allegations and admissions of gerrymandering.

Constitutional requirements
The Constitution of North Carolina states:

Article 1, Section 10:

“All elections shall be free”.

Article II, Section 3:
The Senators shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the senate districts and the apportionment of Senators among those districts, subject to the following requirements:

(1) Each Senator shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Senator represents being determined for this purpose by dividing the population of the district that he represents by the number of Senators apportioned to that district; (2) Each senate district shall at all times consist of contiguous territory; (3) No county shall be divided in the formation of a senate district;

(4) When established, the senate districts and the apportionment of Senators shall remain unaltered until the return of another decennial census of population taken by order of Congress.

Article II, Section 4:
The Representatives shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the representative districts and the apportionment of Representatives among those districts, subject to the following requirements:

(1) Each Representative shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Representative represents being determined for this purpose by dividing the population of the district that he represents by the number of Representatives apportioned to that district; (2) Each representative district shall at all times consist of contiguous territory; (3) No county shall be divided in the formation of a representative district;

(4) When established, the representative districts and the apportionment of Representatives shall remain unaltered until the return of another decennial census of population taken by order of Congress.

Prior to 2010
Shaw v. Reno was a United States Supreme Court case involving a claim that North Carolina’s 12th congressional district (pictured) was affirmatively racially gerrymandered.
The U.S. Supreme Court had ruled in Davis v. Bandemer (1986) that partisan gerrymandering violates the Equal Protection Clause and is a justiciable matter. However, the court found it difficult to apply the precedent in other cases. Only in one subsequent case, Party of North Carolina v. Martin (1992),[1] did a lower court strike down a redistricting plan on partisan gerrymandering grounds.[2]:783

Instead, the Supreme Court found it easier to rule on racial gerrymanders under existing federal law. While the Equal Protection Clause, along with Section 2 and Section 5 of the Voting Rights Act, prohibit jurisdictions from gerrymandering electoral districts to dilute the votes of racial groups, the Supreme Court has held that in some instances, the Equal Protection Clause prevents jurisdictions from drawing district lines to favor racial groups. The Supreme Court first recognized these “affirmative racial gerrymandering” claims in Shaw v. Reno (Shaw I) (1993), holding that plaintiffs “may state a claim by alleging that [redistricting] legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification”. The Supreme Court reasoned that these claims were cognizable because relying on race in redistricting “reinforces racial stereotypes and threatens to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole”:649–650[4]:620 Later opinions characterized the type of unconstitutional harm created by racial gerrymandering as an “expressive harm”,:862 which law professors Richard Pildes and Richard Neimi have described as a harm “that results from the idea or attitudes expressed through a governmental action.”

2010–present
Following the Republican win of supermajorities in both houses of the General Assembly in 2010, the Republican leadership set out to protect their wins by redrawing both legislative and congressional maps in their favor. This resulted in subsequent elections in which Republicans would,

Cooper v. Harris (2017)
On February 5, 2016, a three-judge panel of U.S. Court of Appeals for the Fourth Circuit and U.S. District Court for the Middle District of North Carolina judges ruled that the 1st and 12th districts’ boundaries were unconstitutional and required new maps to be drawn by the legislature to be used for the 2016 election.] On May 22, 2017, the U.S. Supreme Court, in Cooper v. Harris, agreed that the 1st and 12th congressional district boundaries were unlawful racial gerrymanders, the latest in a series of cases dating back to 1993 by different parties challenging various configurations of those districts since their first creation. The Republican General Assembly caucus proceeded to revise congressional maps for subsequent elections to be less racially-defined.

Rucho v Common Cause (2019)
Yet another partisan redistricting case was heard by the Supreme Court during the 2018 term. Rucho v. Common Cause deals with Republican-favored gerrymandering in North Carolina. The District Court had ruled the redistricting was unconstitutional prior to Gill; an initial challenge brought to the Supreme Court resulted in an order for the District Court to re-evaluate their decision in light of Gill. The District Court, on rehearing, affirmed their previous decision. The state Republicans again sought for review by the Supreme Court, which is scheduled to issue its opinion by June 2018.

Rucho v. Common Cause and Lamone v. Benisek were decided on June 27, 2019, which, in the 5-4 decision, determined that judging partisan gerrymandering cases is outside of the remit of the federal court system due to the political questions involved. The majority opinion stated that extreme partisan gerrymandering is still unconstitutional, but it is up to Congress and state legislative bodies to find ways to restrict that, such as through the use of independent redistricting commissions.

Hofeller files
On the same day as the Rucho decision, the U.S. Supreme Court ruled against the federal government in Department of Commerce v. New York, stating that while the bid to add a citizenship question to the 2020 United States Census was could be upheld under the Enumeration clause, the explanation provided by the Commerce Department for the question was insufficient. An advocate of the question, Thomas Hofeller, was also the chief redistricting expert employed by the North Carolina Republican Party and the Republican National Committee in the 2010s to redraw legislative and congressional maps for North Carolina and other states. One of his arguments noted that such a question “would be advantageous to Republicans and non-Hispanic whites.” Following his death in August 2018, his estranged daughter turned over his documents to litigants in Commerce and other ongoing cases against the citizenship question in lower court, who subsequently filed motions to sanction the Department of Commerce for obfuscating Hofeller’s role in how the question became framed.

Common Cause v. Lewis (2019)
On September 3, 2019, the 3-judge panel (2 Democrat, 1 Republican) of the Wake County Superior Court unanimously struck down North Carolina’s current legislative map as unconstitutional, without referring to federal law. Instead, the Court ruled that the map violated the state constitution’s guarantees of free elections, equal protection, freedom of speech and freedom of assembly. The decision also cited the Hofeller files as evidence of the goal of the Republican Party to maximize the number of Republican seats in the General Assembly. The Superior Court gave the North Carolina General Assembly two weeks to draw up a new map prior to the 2020 election. The Senate President pro tempore Philip E. Berger announced that the Republican caucus would comply with the ruling and would not appeal to the North Carolina Supreme Court.