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Back in 2019, the Supreme Court shut the courthouse door to challenges to partisan gerrymandering under the U.S. Constitution in Rucho v. Common Cause. The Court ruled that the U.S. Constitution doesn’t provide clear legal standards for courts to apply in gerrymandering cases, but state courts could fill the legal void. “Provisions in state statutes and state constitutions,” Chief Justice Roberts wrote, “can provide standards and guidance for state courts to apply.”
Until recently, North Carolina was one of a growing list of states — including Alaska, Florida, Maryland, New York, Ohio, and Pennsylvania — that apply constitutional limits to partisan gerrymandering.
Last November, however, Republicans won two seats on the North Carolina Supreme Court, giving it a new conservative majority. In February, the court relied on a rarely used procedural rule to rehear the 2022 partisan gerrymandering case Harper v. Hall — and reversed its prior ruling on April 28.
The unusual decision to rehear and reverse Harper with a new court majority, just a year after it was settled, raises challenging questions about how judicial politics impact the rule of law — particularly at a moment when judicial elections are becoming increasingly politicized.
And with courts in Utah, New Mexico, and New Hampshire all expected to consider partisan gerrymandering claims in the coming months, we will also soon see whether Harper is an outlier or a harbinger of other state courts embracing a Rucho redux.
The North Carolina court concluded in Harper that there is no “truly judicially discoverable and manageable” way to evaluate partisan gerrymandering. Echoing Rucho, it defined the question before it as “how much partisan gerrymandering is too much” — and found fault with political science measures that aren’t definitive.
A key question, of course, is whether partisan gerrymandering can really be “nonjusticiable” when so many other state courts have devised ways to assess such claims. For example, the Alaska Supreme Court issued an opinion that courts can police partisan gerrymandering just one week before the North Carolina justices threw up their hands. As my Brennan Center colleague Yurij Rudensky explained in a recent piece analyzing the opinion for State Court Report, the Alaska decision “establishes unequivocally” that partisan gerrymandering “offends equal protection under the Alaska Constitution.”
The Alaska court took a very different analytical approach than the court in Harper, focusing on whether there was evidence of bad intent by the map-drawers based on the “totality of circumstances.” To establish a constitutional violation, as Rudensky notes, the court considered everything from documentation of secretive procedures by the redistricting board to expert evidence that the board’s use of meandering district boundaries ignored communities of interest. This isn’t simple, but it’s also exactly the kind of evidence courts consider all the time.
There’s much more to say, but I’ll finish by noting that North Carolina’s ruling could also have implications for Moore v. Harper, currently before the U.S. Supreme Court, which relates to a challenge to the North Carolina Supreme Court’s earlier partisan gerrymandering ruling. In Moore, the Supreme Court is considering an argument that the so-called “independent state legislature theory” gives state legislatures near-absolute power to regulate federal elections — and writes state courts out of the equation. Now that the North Carolina court has reversed itself, the Supreme Court has requested further briefing, due Thursday, about whether it can continue to hear the case.