BREAKING: North Carolina’s Racial Gerrymander Struck Down

About two weeks ago, a federal appeals court struck down many key provisions of a comprehensive voter suppression law enacted by North Carolina’s GOP-controlled legislature. The court’s opinion was brutal, calling these lawmakers out for using data on racial voting patterns in an intentional effort to construct a law that would prevent many African-Americans from voting.

On Wednesday, North Carolina Republicans received another raft of bad news from a federal court — a three-judge panel struck down the state legislative maps as an unconstitutional racial gerrymander. Although the court’s opinion in Covington v. North Carolina is considerably less harsh in tone than the Fourth Circuit’s opinion halting much of the state’s voter suppression law, the loss of these maps is still a blow to Republicans.

In 2012, Republican presidential candidate Mitt Romney won North Carolina’s electoral votes by only a two-point margin over President Obama. Yet the state legislative maps proved so favorable to Republicans that the GOP captured a supermajority of both houses of the state legislature.

As election law expert Rick Hasen notes, Covington “follows a familiar pattern in these racial gerrymandering cases: a Republican legislature draws district lines to give the party an advantage by packing minority voters into a smaller number of districts.”

As the court lays out, legislative leaders instructed private counsel hired to draw the state’s maps to “more than triple the number of majority-black General Assembly districts, from nine to thirty four.” On the surface, this may sound like good news for minority representation. Yet, by packing African-Americans into relatively few districts, the state minimized black voters’ ability to influence elections in other parts of the state, and prevented them from forming coalitions with non-black voters that could potentially give them greater representation in the legislature.

Because African-American voters overwhelmingly tend to prefer Democrats over Republicans, minimizing the influence of black voters also increased the GOP’s power relative to Democrats.

North Carolina Republicans will have run three full elections under the unconstitutional maps before they will finally be redrawn.

For what it is worth, the court took no explicit view on whether the state’s maps were drawn in order to boost the GOP, noting that the specific evidence introduced in court did not show that “political considerations played a primary role in the drawing of the challenged districts.” In an unusually credulous section of the opinion, the court notes statements by two Republican leaders suggesting that “politics was an afterthought.”

Nevertheless, the court also acknowledges that “there was an increase in the maps’ political favorability for North Carolina Republicans” after the unconstitutional maps went into effect.

So that’s the bad news for the North Carolina GOP — maps that strongly favored their party have been struck down and, assuming that this court’s decision survives on appeal, will not be in effect for future elections. Additionally, because the court found 28 different districts unconstitutional, Republicans may find it difficult to draw new maps that give them the same advantage as the current ones. Twenty-eight districts is a lot, and redrawing this many districts will have ripple effects that will impact much of the overall map.

There is, however, a considerable amount of good news for Republicans in the court’s opinion. For one thing, it will not take effect until after the upcoming election. The court wrote that it is “cognizant that the timing for the implementation of injunctive relief is particularly delicate in this case,” since the state may not be able to implement new maps in time for November. Accordingly, the judges decided to allow “the November 2016 elections to proceed as scheduled under the challenged plans, despite their unconstitutionality.”

That means that, even if this decision survives appeal, North Carolina Republicans will have run three full elections under the unconstitutional maps before they will finally be redrawn.

Just as significantly, the Court concluded, based on Supreme Court precedent that it “must provide the North Carolina General Assembly with a ‘reasonable opportunity’ to draw remedial districts in the first instance.” This is not the first time a court has ordered North Carolina’s GOP legislature to draw new maps. The last time, legislative leaders explicitly instructed the mapmakers to draw a “political gerrymander” that favored Republicans over Democrats. They will no doubt attempt to do so again this time around, if they can.

So, while the decision in Covington is bad news for Republicans, and will, at the very least, prove an inconvenience for state lawmakers, it remains to be seen whether this decision will produce significantly less partisan maps. Absent a court decision holding that partisan gerrymanders are themselves unconstitutional, Covington could simply swap in one set of highly partisan maps for another.