North Carolina’s congressional map will soon be under review by the nation’s highest bench in March. At question: are the lines constitutional?
- The court could punt as they have before
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- RELATED: After Kennedy's Retirement What's Next for North Carolina Gerrymandering Case
Recapping the arguments
Lawyers for the plaintiff argue the maps should be thrown out, because they give Republicans too much of an advantage.
“It’s an extreme map. It’s probably the most extreme gerrymander in the United States in recent years,” said Paul Smith, vice president of the Campaign Legal Center.
Smith, who is among those working on the case, says there is no question Republicans in North Carolina’s General Assembly went too far. One lawmaker said publicly the lines were designed so Republicans could win 10 seats, while Democrats win only three.
“They told us that’s what they were doing and it's exactly how it’s performed,” Smith said.
During the 2018 midterm elections in North Carolina, Republican and Democratic congressional candidates split the statewide vote tally almost evenly. However, Republicans won well over half of the House districts: at least nine of 13. One race remains in contention amid an election fraud investigation.
Tar Heel Republicans, including Rep. David Lewis of Harnett County, defend the maps. Lewis was one of the primary map drawers.
“Politics was considered but not as a the [sic] primary consideration, and I am confident that these maps will prevail in court,” Lewis said in a statement. “These districts were drawn using traditional redistricting criteria, and kept more counties, cities and precincts whole any North Carolina map in decades.”
So what might the justices do?
The court could punt as they have before, pushing the case aside on technical grounds and sending it back down to the lower courts for further clarification.
They could decide federal courts have no say over partisan gerrymanders, giving the win to state Republicans. In a brief filed with the court in November, counsel for the North Carolina Republican lawmakers argued that “the Framers neither envisioned federal courts wading into such politically fraught waters nor provided them with the tools to do so successfully.”
Alternatively, the court could side with the plaintiffs, declaring the map unconstitutional. The questions is, can they convince the justices the state leaders went too far? Louis Caldera, a law professor at the American University Washington College of Law, said that would be no small feat because partisan gerrymandering is hard to define.
“That’s been one of the challenges, is having a standard of how do you know that there’s been unconstitutional partisan gerrymandering because by definition drawing district lines is a partisan activity usually engaged in by state legislatures,” Caldera said.
Another factor at play is the makeup of the court itself. Justice Anthony Kennedy, considered a possible swing vote on this issue, retired last year. He was replaced by conservative justice Brett Kavanaugh.
Smith says in order to get a victory, they are going to have to convince at least one of the conservative justices to side with them.