A federal judge swatted down North Carolina Republicans’ latest attempt to preserve their gerrymander of the General Assembly, rejecting a bizarre GOP ploy to prevent the progressive state Supreme Court from striking down the current maps.
North Carolina’s state Legislature is grotesquely gerrymandered to entrench Republican power. GOP lawmakers hired political operatives to draw mangled districts that dilute Democratic votes—because, they declared, “electing Republicans is better than electing Democrats.” This gerrymandered firewall held firm in 2018, when Democrats won a majority of statewide votes for both the House and Senate but received a minority of seats. In response, Common Cause and the North Carolina Democratic Party filed a lawsuit in state court, arguing that the gerrymander infringes upon the North Carolina Constitution’s guarantees of free elections, equal protection, and freedom of expression.
The decision to pursue the claim in state court, rather than federal court, was strategic: In 2018, North Carolina elected civil rights attorney Anita Earls to the state’s high court, cementing a 5–2 progressive majority. There is thus an excellent chance that the justices will follow the lead of the Pennsylvania Supreme Court and invalidate the gerrymander under the state constitution. So legislative Republicans tried to remove the case to federal court—a totally frivolous move, since the claims arise solely under the North Carolina Constitution and the federal judiciary has no authority to resolve them.
To work around this roadblock, GOP lawmakers devised a rather startling theory: They alleged that the plaintiffs were attempting to force North Carolina to violate the Voting Rights Act, the 14th Amendment’s Equal Protection Clause, and the 15th Amendment’s bar on race-based voter suppression. How, exactly, could an effort to remedy partisan gerrymandering wind up disenfranchising minorities? Republicans argued that if the current map were invalidated, either the North Carolina Supreme Court or the General Assembly would have to draw new districts. And, they insisted, neither could do so without trampling on the voting rights of racial minorities. The argument implies that both legislators and the justices are too racist to be trusted to redraw the maps in a way that wouldn’t violate the Constitution.
On Wednesday, U.S. District Judge Louise W. Flanagan rightly tossed out this embarrassing Hail Mary, sending the case back to North Carolina court. Flanagan noted that she would explain her full reasoning in a later opinion, but it’s easy to see why she kicked out the case: It has no business in federal court, it is built upon a strange and offensive legal theory, and it is obviously just a delaying tactic—a bid to run down the clock so that new maps cannot be drawn before the 2020 election. Flanagan, a moderate conservative appointed by George W. Bush, had no desire to become complicit in the North Carolina GOP’s undemocratic machinations.
Thanks to Wednesday’s order, the case is back on track, leaving the North Carolina judiciary enough time to consider the merits and demand new districts before the next election cycle. Legislative Republicans will surely have more dilatory tricks up their sleeve. But it is increasingly unlikely that they’ll be able to keep this case off Justice Anita Earls’ docket.