WASHINGTON, D.C. — On Tuesday, Oct. 4, the seven justices of the North Carolina Supreme Court heard oral arguments in a redistricting lawsuit concerning North Carolina’s congressional and legislative maps. The appeal that was heard before the North Carolina Supreme Court — over multiple sets of the state’s maps — arises from a decision in which a North Carolina trial court adopted new state House, state Senate and congressional districts after the first round of maps were struck down by the North Carolina Supreme Court for violating the North Carolina Constitution. Following the trial court’s adoption of remedial (meaning corrective) maps, Republican legislators — the defendants in the lawsuit — petitioned the U.S. Supreme Court and raised the radical independent state legislature (ISL) theory, which is on the Supreme Court’s docket this fall in Moore v. Harper. Concurrently, multiple appeals were filed in the North Carolina Supreme Court over the legality of the new maps adopted by the state trial court, which were the subject of today’s argument.
- The Harper, Common Cause and NCLCV plaintiffs appealed the remedial state Senate map that was adopted by the General Assembly for being a pro-Republican partisan gerrymander that violates the state constitution.
- The Common Cause plaintiff also appealed the remedial state House map that was adopted by the General Assembly for being a pro-Republican partisan gerrymander that violates the state constitution.
- The Republican legislative defendants appealed the interim congressional map — drawn by a court-appointed special master — that is only in place for the 2022 election cycle. These defendants tried to dismiss their own appeal of the congressional map before the North Carolina Supreme Court after the U.S. Supreme Court agreed to hear their case regarding the ISL theory, but that motion has not yet been ruled on.
First, the court heard from the attorney representing the Harper plaintiffs who appealed the remedial state Senate map that was passed by the General Assembly after the North Carolina Supreme Court struck down the General Assembly’s original map for being a pro-Republican gerrymander. The attorney began by discussing her opposition to the legislative defendants’ motion to dismiss their own appeal of the remedial congressional map in light of their simultaneous appeal raising the ISL theory in the U.S. Supreme Court. Justice Robin Hudson began by asking the attorney, “What would be the consequence if we did dismiss the [legislative defendants’] appeal” of the remedial congressional map? The attorney for the Harper plaintiffs responded by stating that if the North Carolina Supreme Court dismisses the appeal, it should stipulate that, as a matter of North Carolina law, all of the arguments regarding the remedial map are waived, specifically the arguments that invoke the federal Elections Clause and the ISL theory. She added that if the court were to dismiss the legislative defendants’ appeal — without specifying that the legislative defendants’ ISL theory arguments contravene North Carolina state law — then there is a risk that the legislative defendants’ will tell the U.S. Supreme Court that these arguments were never waived under North Carolina law. The attorney stated that, alternatively, it would be optimal if the North Carolina Supreme Court heard the appeal of the congressional map in full and affirmed the trial court’s decision to impose an interim remedial map for 2022. She also asked that the court hold that North Carolina law authorizes judicial review of congressional maps under the North Carolina Constitution and rule that the legislative defendants’ Elections Clause argument be waived since it is not even contained in the legislative defendants’ opening brief regarding their appeal of the remedial congressional map.
Subsequently, the attorney for the Harper plaintiffs turned to discussing the Harper plaintiffs’ appeal of the remedial state Senate map. She asserted that the trial court committed “legal error with respect to the state Senate map” since the map “significantly favored Republicans.” She also noted that the trial court erred in failing to consider that “every single neutral special advisor to the [court-appointed] master concluded that this plan had significant bias.” She also pointed to the fact that under the remedial state Senate plan, “there is an average of a four seat advantage for Republicans at the same vote share.” Furthermore, the attorney for the Harper plaintiffs added that the legislative defendants’ own expert similarly found evidence of a Republican advantage under the remedial state Senate map.
Next, the court heard from the attorney representing the Common Cause plaintiff who appealed both the remedial state Senate map and the remedial state House map. The attorney argued that the General Assembly’s maps violated North Carolina’s Equal Protection Clause and intentionally dilute the voting power of Black voters. The attorney also contended that both the state House and Senate maps are unconstitutional partisan gerrymanders. The attorney asked the court to adopt the remedial districts proposed by the Common Cause plaintiff in state House District 10 and state Senate District 4 and to “reverse the trial court’s remedial order as to the state legislative maps.”
Next, the court heard from the attorney for the legislative defendants. The attorney began by stating that the remedial legislative maps enacted by the General Assembly were fairly enacted and drawn using non-partisan standards and by non-partisan staff. Additionally, the attorney for the legislative defendants raised the point that the Legislature should be given deference when it comes to the remedial map-drawing process. Justice Samuel Irvin asked, “In your view, deference means what?” The attorney responded that “[the maps and the metrics used to draw them] should be accepted unless [they are] obviously wrong.” When asked by Hudson if the trial court should be able to review and oversee the redrawing of the maps, the attorney again emphasized that the trial court can review the maps but “should defer to the General Assembly unless what the General Assembly did was obviously, clearly wrong.” The attorney then turned to the trial court’s rejection of the Legislature’s remedial congressional plan that was replaced with a plan drawn by a court-appointed special master. The attorney claimed that the North Carolina Supreme Court gave the trial court “carte blanche to pick the maps that it wanted to pick.” The attorney closed out his arguments by concluding that the plaintiffs’ support for a “holistic approach” to map drawing invites a “usurping of the redistricting function by the courts from the Legislature.”
The court then heard closing arguments from the attorneys for the various sets of plaintiffs. The attorney for the Harper plaintiffs reiterated her contention that the remedial state Senate map is a partisan gerrymander and should be struck down, while the congressional map should be affirmed. The Common Cause plaintiff’s attorney also gave closing arguments in which she once again urged the justice to strike down both of the remedial legislative maps for violating the North Carolina Constitution.
Finally, the court heard a rebuttal from the attorney for the legislative defendants who reiterated that the court should “defer to the choices that the General Assembly made” in trying to “undertake this very difficult task.” He once again asked the court to affirm the trial court’s approval of the remedial legislative plans and asserted that the trial court should have deferred to all of the maps drawn by the Legislature.