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On January 9, 2018, a three-judge panel threw out the North Carolina Congressional redistricting map.  The panel held the plan was a partisan gerrymander that violated the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.  The day after the North Carolina decision, a three-judge panel upheld the Pennsylvania congressional map as constitutional.

As discussed here earlier this week, the United States Supreme Court has on its docket two partisan gerrymandering cases.  Last fall, the Court held oral argument in Gill v. Whitford, a Wisconsin case in which the plaintiffs challenged the redistricting plan for the state legislature.  In a challenge to the Maryland congressional map in Benisek v. Lamone, the parties currently are submitting briefs and responding to motions.

North Carolina Opinion

What happened in North Carolina?  A quick recap of the litigation in North Carolina demonstrates the tortured path the congressional maps have taken.  In 2011, the Republicans assumed a majority of the North Carolina General Assembly and subsequently drew Congressional districts that favored Republican candidates.  After the map was implemented, the Republicans won nine of the thirteen Congressional districts.  Two years later, the Republicans picked up another seat, giving them ten out of the thirteen districts.  A lawsuit claimed two districts violated the Constitution based on a racial gerrymandering claim.  The Supreme Court agreed and ruled in the Spring of 2017.  Forced back to the drawing board, the General Assembly redrew the thirteen Congressional districts.

In the most recent case, the plaintiffs challenged the redraw as violative of the Constitution due to partisan gerrymandering.  In a 191-page opinion, a majority of the three-judge panel threw out the plan, holding “partisan gerrymandering runs contrary to numerous fundamental democratic principles and individual rights.”  Further, the panel required the North Carolina General Assembly to draw new Congressional districts in the next two and a half weeks.  The Republican leadership of the General Assembly has stated it will seek an immediate stay of the decision and file an appeal.

Pennsylvania Ruling

In Pennsylvania, the plaintiffs challenged the Pennsylvania Congressional district map as unconstitutional based on partisan gerrymandering.  By a vote of 2-1, the three-judge panel upheld the plan as constitutional. The panel held the allegations of the complaint essentially raised a political question with which the panel declined to interfere, finding it would be inappropriate for a court to do so. The plaintiffs have asserted they will appeal the panel’s decision.

What Happens Next?

Most observers were surprised when the Supreme Court agreed to hear the Maryland case given the Court already had heard oral argument in the Wisconsin challenge. Some observers predict the Supreme Court will rule at the same time on these two cases to minimize political second-guessing given the Wisconsin map favors Republicans while the Maryland map favors Democrats.

What the Supreme Court will do with the North Carolina and Pennsylvania challenges remains unknown.  Yes, the facts are a little different, but at the end of the day, the Supreme Court must decide very similar legal issues—principally whether the plaintiffs have standing to make a partisan gerrymandering challenge and, if so, what the appropriate matrix is to measure whether a state has violated the Constitution.

Stay tuned.  As stated in earlier posts, a ruling by the Supreme Court prohibiting partisan gerrymandering potentially will have a large impact on Congressional, state, and local districts not only in South Carolina, but also across the United States.