Federal Courts Strikes Down North Carolina Congressional Plan as Unconstitutional Partisan Gerrymander

GREENSBORO, N.C.  – A federal three-judge panel for North Carolina’s Middle District has struck down North Carolina’s 2016 congressional plan as an unconstitutional partisan gerrymander.  That 2016 plan was developed after a federal court invalidated two congressional districts as unconstitutional racial gerrymanders.  When the legislature purported to “remedy” that racial gerrymandered plan with an unabashed and admitted partisan gerrymander, the League of Women Voters of North Carolina and several voters from across the state filed suit.
Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, offered the following statement after the opinion was released:
“A bipartisan three-judge federal panel agreed with us today that partisan gerrymandering is an affront to our Equal Protection Clause.  They recognized the egregious nature of what the North Carolina General Assembly did in 2016, purportedly to remedy another unconstitutional congressional redistricting plan.”  
“We’re enormously gratified on behalf of our clients and all voters in North Carolina that no one will have to endure another congressional election under an unconstitutional map.  The court was clear in demanding a real remedy before the 2018 elections, and we expect the General Assembly to respect that order.”
Ruth Greenwood, senior legal counsel, voting rights and redistricting at Campaign Legal Center (CLC) issued the following quote after the opinion was released:
“The court handed voters a major victory today by reinforcing the core principle that voters should choose their representatives, not the other way around.  North Carolina should take this opportunity to draw a fair map that does not discriminate against voters. And marginalized voters in other states should be encouraged that the courts have adopted a standard for measuring partisan symmetry that can be used to set limits on the practice of gerrymandering nationwide.”
The court’s order can be found at http://bit.ly/NCPartisanGerrymanderingDecision
 
Per the ruling, the North Carolina General Assembly has until January 29 to enact a remedial plan; the federal court plans to employ a special master to draw an alternative remedial plan, and the remedial plan should be enacted before the 2018 congressional elections.
Regarding the 2018 Election – p. 187
Having concluded that the 2016 Plan violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution, we now must determine the appropriate remedy. Absent unusual circumstances, “such as where an impending election is imminent and a State’s election machinery is already in progress,” courts should take “appropriate action to insure that no further elections are conducted under the invalid plan.” Reynolds, 377 U.S. at 585. As the 2018 general election remains many months away and the 2018 election cycle has not yet formally begun, we find no such circumstances exist. Accordingly, we enjoin Defendants from conducting any further elections using the 2016 Plan.
Regarding the remedial plan – p. 189-190
No later than 5 p.m. on January 29, 2018, the State shall file with the Court any enacted proposed remedial plan, along with: 1. transcripts of all committee hearings and floor debates related to the proposed remedial plan; Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 189 of 205 190 2. the “stat pack” for the proposed remedial plan; 3. a description of the process the General Assembly, and any constituent committees or members thereof, followed in drawing and enacting the proposed remedial plan, including, without limitation, the identity of all participants involved in the process; 4. any alternative plans considered by the General Assembly, any constituent committee responsible for drawing the remedial plan, or the leadership of the General Assembly or any such committee; and 5. the criteria the General Assembly, any constituent committee responsible for drawing the remedial plan, and the leadership of the General Assembly or any such committee applied in drawing the proposed remedial plan, including, without limitation, any criteria related to partisanship, the use of political data, or the protection of incumbents. No later than 5 p.m. on February 5, 2018, Plaintiffs and other interested parties may file objections to any enacted proposed remedial plan and submit an alternative remedial plan. No later than 5 p.m. on February 12, 2018, Defendants may file responses to any such objections.
Regarding the Special Master – p. 191
To that end, we intend to appoint in short order a Special Master pursuant to Federal Rule of Civil Procedure 53 to assist the Court in drawing an alternative remedial plan. Rodriguez v. Pataki, 207 F. Supp. 2d 123, 125 (S.D.N.Y. 2002) (“[T]he ‘eleventh hour’ is upon us, if indeed it has not already passed. It is therefore necessary for this Court to prepare for the possibility that this Court will be required to adopt an appropriate redistricting plan.”). Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 190 of 205 191 Accordingly, we direct the parties to confer and file no later than January 16, 2018, a list of three qualified and mutually acceptable candidates to serve as Special Master. In the event the parties fail to agree as to a list of candidates, the Court may identify a special master without input from the parties.
Other notable excerpts:
From p. 25:
We further conclude that the 2016 Plan violates the Equal Protection Clause because the General Assembly enacted the plan with the intent of discriminating against voters who favored non-Republican candidates, the plan has had and likely will continue to have that effect, and no legitimate state interest justifies the 2016 Plan’s discriminatory partisan effect. We also conclude that the 2016 Plan violates the First Amendment by unjustifiably discriminating against voters based on their previous political expression and affiliation. Finally, we hold that the 2016 Plan violates Article I by exceeding the scope of the General Assembly’s delegated authority to enact congressional election regulations and interfering with the right of “the People” to choose their Representatives.
From p. 46:
Partisan gerrymandering runs contrary to both the structure of the republican form of government embodied in the Constitution and fundamental individual rights preserved by the Bill of Rights. As detailed more fully below, partisan gerrymandering of congressional districts constitutes a structural violation because it insulates Representatives from having to respond to the popular will, and instead renders them responsive to state legislatures or political factions thereof.
From p. 49-50:
Partisan gerrymandering also runs afoul of rights that “are individual and personal in nature,” Reynolds, 377 U.S. at 561, because it subverts the foundational constitutional principle that the State govern “impartially”—that “the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis, 478 U.S. at 166 (Powell, J., concurring in part and dissenting in part); see also infra Part III. And partisan gerrymandering infringes on core political speech and associational rights by “burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment); see also infra Part IV. That partisan gerrymandering encroaches on these individual rights by undermining the right to vote—the principle vehicle through which the public secures other rights and prevents government overreach—magnifies the constitutional harm. As the Supreme Court explained in Wesberry, “[o]ur Constitution leaves no room for classification of people in a way that unnecessarily abridges [the right to vote]” because “[o]ther rights, even the most basic, are illusory if the right to vote is undermined.” 376 U.S. at 17–18. To that end, the Supreme Court long has held that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
A partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. And as James Madison warned, a legislature that is itself insulated by virtue of an invidious gerrymander can enact additional legislation to restrict voting rights and thereby further cement its unjustified control of the organs of both state and federal government.