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.
The bad news is that the U.S. Supreme Court does not seem interested in taking on partisan gerrymandering, despite its likely illegality. The good news is that the North Carolina Supreme Court can take action now. Like many state constitutions, the North Carolina Constitution protects voting rights more robustly than the U.S. Constitution. Its Equal Protection Clause guarantees all citizens “substantially equal voting power” and “the right to vote on equal terms.” And its Election Clause commands that “[a]ll elections shall be free”—that is, not rigged by lawmakers to predetermine the outcome. The Pennsylvania Supreme Court recently ruled that a similar provision in its own state constitution outlawed partisan gerrymandering, explaining that “a diluted vote is not an equal vote.” It seems quite likely that the North Carolina Supreme Court, led by Earls, will reach the same conclusion after hearing this lawsuit.
GOP lawmakers are terrified of such a ruling, since it would threaten the legislative majority they entrenched by diluting Democratic votes. So after Common Cause and the North Carolina Democratic Party filed their lawsuit in November, the General Assembly—which has given itself the power to defend its gerrymander in court—did not defend its map on the merits. Instead, it filed a motion to remove the case to federal court. Federal judges are not typically permitted to hear cases that exclusively involve interpretation of state law. The General Assembly, however, argued that the plaintiffs are asking the state to violate the Voting Rights Act, the 14th Amendment’s Equal Protection Clause, and the 15th Amendment’s bar on race-based voting restrictions. It asserts that because the relief sought would infringe upon federal law, the federal judiciary may snatch the case out of state court.
How, you might ask, would it be a violation of the central voting rights protections our nation has for a state to undo a partisan gerrymander that dilutes the votes of hundreds of thousands of voters? The claim is absurd for so many reasons that it is difficult to count them all. But it’s worth highlighting a few. Start with the General Assembly’s own words earlier this year in a federal challenge to the very same legislative map (brought under the U.S. Constitution). In a bid to delay resolution, Republican legislators were then trying to remove the lawsuit from federal court to state court because that specific case tangentially implicated state law. A federal district court, is “foreclosed from ruling on contested issues of state law,” since “an unsettled issue of state law … is more appropriately directed to North Carolina courts, the final arbiters of state law,” GOP attorneys wrote at the time. It would be, they claimed, “a revolution in federalism” to let a federal court resolve this dispute.
Republicans’ profound opposition to federal courts hearing gerrymandering cases mysteriously disappeared after Earls’ election. Now they seem to believe that federal courts are the only proper venue for such cases, even when the legal issue at hand is an interpretation of the state constitution alone.
It gets worse. Republicans now insist that they cannot redraw the legislative maps without violating the 14th or 15th Amendments. But these amendments would not be violated unless the legislature were to intentionally draw districts or dilute votes along racial lines. The General Assembly is essentially arguing that it is incapable of drawing new maps without actively discriminating against minorities. And it is suggesting that the North Carolina Supreme Court will also be unable to draw maps without engaging in racial discrimination. By this logic, the 14th and 15th Amendments—ratified to protect the rights of newly freed slaves after the Civil War—prevents state courts from protecting equal voting rights enshrined in a state constitution. Why? Because the legislators being challenged in state court intend to violate the 14th and 15th Amendments if they lose.
I am frankly unsure whether the legislature’s lawyers actually understood the implications of this argument, because if they did, they would surely be too embarrassed to commit it to paper.
The coup de grâce, though, is the General Assembly’s assertion that a new map would infringe upon the Voting Rights Act. In short, GOP attorneys suggest that they drew the current map to comply with the VRA by preserving the power of minority votes, and that a new map would dilute that power. A strange argument on its own terms—but an outlandish one given that the General Assembly already told a federal court that it did not draw the current map to comply with the VRA. Seriously: In a 2017 filing, Republican attorneys declared that the Legislature did not consider race in drawing a new map because it “did not conclude that the Voting Rights Act obligated it” to.
Were these lawyers lying in 2017? Are they lying today? Either way, the Common Cause plaintiffs rightly argue that the General Assembly should be legally prohibited from making a claim that it flatly contradicted in court one year ago.
It’s easy to see what’s going on here. The General Assembly must know its arguments are meritless. It recognizes that, at some point, the North Carolina Supreme Court will probably invalidate its gerrymander. So it is trying to put off that decision for as long as possible by using the federal judiciary to gum up the works.
Republicans’ motion for removal has been assigned to U.S. District Judge Louise W. Flanagan, a moderate George W. Bush appointee. She should reject it as quickly as possible. North Carolina voters deserve fair districts in 2020, and there is no legal impediment to the state Supreme Court creating them before the next election. The General Assembly’s latest machinations are not sly or shrewd or clever. They are just pathetic.