The federal challenge to Lewis’s latest maps, known as Common Cause v. Rucho, was one of several similar cases bouncing around federal courts, the most prominent of which was Gill v. Whitford, a challenge to Wisconsin’s districts that made it to the Supreme Court. A three-judge panel ruled against North Carolina in January before the high court finished considering Whitford, making it the first-ever federal court to rule against partisan gerrymandering. But the Supreme Court’s eventual decision in Whitford essentially punted on the issue, demanding that plaintiffs in Wisconsin meet a new evidentiary burden in order to gain standing. That punt also remanded Common Cause back to the federal panel, so the judges could reconsider it based on the guidelines established in Whitford.
This week, the panel found that nothing in the justices’ ruling changed its calculus on the extraordinary partisan advantage baked into North Carolina’s congressional districts, which the Duke University statistics professor Jonathan Mattingly, a witness for the plaintiffs, called an “extreme statistical outlier.” “We further conclude that Whitford did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims,” the judges wrote in their decision Monday.
Voting-rights and liberal groups immediately hailed the ruling as a victory. “Now that a federal court has—once again—told Republican legislators that their gerrymandered maps are unconstitutional, this shameful era should finally come to an end,” said former Attorney General Eric Holder, now the chairman of the National Democratic Redistricting Committee, in a statement. “Why are Republicans afraid of the voters they claim they want to represent?”
But Common Cause, the watchdog group that was the lead plaintiff in the matter, acknowledged Monday that its win isn’t the end of this saga. The state is expected to make a hasty appeal, and close observers of the case expect it to return to the Supreme Court. “While we look forward to having our landmark case now go before the highest court in the land, it’s regrettable that North Carolina voters this November will be voting in congressional districts that have been found unconstitutional,” said Bob Phillips, the group’s North Carolina executive director.
It’s actually unclear if the state will use the rejected congressional map this November. The federal panel set an August 31 deadline for plaintiffs and defendants to submit briefs advising whether the General Assembly should be given another crack at redrawing districts. If it’s allowed to redraw them, it’d have just three weeks to get it done.
But the possibility of redrawn districts raises a host of additional difficulties—for one, North Carolina has already had primary elections based on the now-unconstitutional map. In order to get around that problem, the court proposes two possible solutions. The first option is to proceed with the primary candidates voters have already chosen, and have them run in their existing districts. The second is to nullify the previous primary elections and hold new ones in place of a general election this November. Then, a new general election could be held sometime before January.
After considering each side’s briefs, the court could decide that the General Assembly is not fit for the task of redrawing maps that it’s botched twice before. In that case, the court, the plaintiffs, and the defendants could come to an agreement on the appointment of a special master to handle the task. But still, the same considerations about the primary elections would be in play. In all, the state will face two paths forward that are both imperfect: It can go ahead with elections based on a map it just declared unlawful, or it can try and change the entire shape of the election—perhaps even invalidating a primary and calling a new one—within the space of two months.