The United States Supreme Court Sidesteps Partisan Gerrymandering, But Leaves the Door Open for Future Resolution

March 10, 2022 - Jonathan D. Klett - William C. McKinney
On Monday, March 7, 2022, the United States Supreme Court allowed court-drawn maps to stand for the upcoming 2022 midterm elections in North Carolina. In a 6-3 decision, the Supreme Court denied an application for emergency stay filed by the North Carolina General Assembly’s Republican legislative leadership to reinstate the remedial United States congressional maps enacted on February 17, 2022. The Supreme Court appears to have denied the application, in part, on the grounds that it was too late to order that the district lines be changed for the 2022 primary and general elections. 

The Supreme Court’s decision ends an approximately four-month litigation battle, beginning in North Carolina Superior Court. The originally drawn United States congressional map and legislative maps were enacted by the North Carolina General Assembly on November 4, 2021. These maps were challenged by plaintiffs who claimed the maps were an unconstitutional racial and partisan gerrymander under the North Carolina Constitution. On February 14, 2022, the North Carolina Supreme Court issued an Opinion holding that partisan gerrymandering claims are justiciable under the North Carolina Constitution and that the maps enacted by the North Carolina General Assembly violated several rights guaranteed to the North Carolina people by the North Carolina Constitution. 

In its Opinion, the North Carolina Supreme Court identified constitutional parameters for partisan gerrymandering for future redistricting maps. When a districting plan “systematically makes it harder for one group of voters” because of their party affiliation “to elect a governing majority than individuals in a favored party of equal size,” it “unconstitutionally infringes” upon voters’ “fundamental rights to vote on equal terms and to substantially equal voting power.”  Harper v. Hall, --- S.E.2d ---, No. 413PA21, 2022 WL 496215, at *35 (N.C. Feb. 14, 2022).  The North Carolina Supreme Court found that the previously enacted maps were unconstitutional partisan gerrymanders and remanded the case to the trial court to “oversee the redrawing of the maps by the General Assembly or, if necessary, by the court.”  Id. at *2.

To that end, the trial court appointed three Special Masters to oversee the review of any remedial redistricting plans. The North Carolina General Assembly enacted remedial maps on February 17, 2022,[1] and the plaintiffs submitted maps as well for the trial court’s consideration. On February 23, 2022, the trial court – which under North Carolina law is a three-judge panel appointed by the Chief Justice of the North Carolina Supreme Court – approved the remedial North Carolina senate and North Carolina house map, but did not approve the remedial United States congressional map. Instead, the trial court adopted a United States congressional map recommended by the Special Masters. Legislative leadership in the North Carolina General Assembly then filed the emergency stay to reinstate the map it previously enacted, arguing that the North Carolina court had overstepped its authority by usurping the power that the Elections Clause confines to the legislature.

The United States Supreme Court’s decision on Monday leaves the door wide open for settling the issue of partisan gerrymandering and a state court’s right to adopt redistricting plans. Justices Samuel A. Alito, Jr., Clarence Thomas and Neil M. Gorsuch dissented, stating the case presented a good opportunity to consider a recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections, or the so-called Independent State Legislature Doctrine. Justice Alito’s dissent opined this case easily satisfied the criteria for certiorari. Justice Brett M. Kavanaugh’s concurrence agreed the issue is important and this issue is almost certain to keep arising until the Court definitively resolves it. The four total Justices in the concurrence and dissent suggest that this issue is nearly ripe for review. In fact, a writ of certiorari requires four of the nine Justices to accept a case, and granting a stay requires five of the nine Justices. On the same day, and without the accompanying dissents, the United States Supreme Court denied an emergency stay filed by legislative leadership from a similar case in Pennsylvania. Notably, these opinions follow the United States Supreme Court’s finding in Rucho v. Common Cause, 139 S.Ct. 2484 (2019) that whether a state districting plan was unconstitutional was not a justiciable matter for the federal courts.

Haynsworth Sinkler Boyd, P.A. participated in the North Carolina redistricting litigation, filing four amicus curiae briefs, including an amicus curiae brief for a bipartisan group of former Governors and a proposed amicus curiae brief for a legislative redistricting expert. If you have questions about redistricting litigation, please reach out to William McKinney or Jonathan Klett. 

[1]  The broad bipartisan consensus is that the North Carolina house passed a map that was formed with input from both political parties, while the North Carolina senate map was passed on a party-line vote.  Under North Carolina law, districting maps are created and enacted by the General Assembly, but are not subject to any bicameral presentment requirement to the Governor.