Election '18

GOP’s Election Hijacking Tactics Thwarted in Court

A federal appeals court orders North Carolina to redraw gerrymandered U.S. House districts in two weeks—or the court will.

Photo Credit: www.nc.gop/

When a federal appeals court threw out North Carolina’s congressional map as an unconstitutional partisan gerrymander this week, it didn’t just boost Democrats’ chances of winning in 2018’s midterm elections.

It served as the latest example of what the state’s GOP has done to hijack the voting process by nothing less than a political coup—or a deliberate effort to turn a once-purple state with the South’s most progressive voting laws into a red-run vote-suppressing bastion.

“It’s hard to imagine a more egregious gerrymander,” Nicholas Stephanopoulos, a University of Chicago Law School professor who has been leading the legal battle to overturn extreme redistricting at the Supreme Court, wrote on ElectionLawblog. The ruling by Judge James A. Wynn Jr. was the first time a federal appeals court struck down a congressional map as an illegal partisan gerrymander.

“The authors of the [now-overturned] North Carolina plan gleefully boasted of their partisan motives, achieved some of the worst partisan asymmetries of the last half-century, and ensured that their handiwork would be immune to all but the biggest wave—all in a state whose political geography, according to the computer simulations, mildly favors Democrats,” Stephanopoulos said.

The lengthy ruling is the third major court decision that declares North Carolina’s Republicans have broken the law when carving up the state’s electoral districts after the 2011 Census. The focus of Wynn’s ruling are the state’s 13 U.S. House seats, 10 of which are held by Republicans. That decision follows two prior federal court rulings that two House seats and 28 state legislative seats were illegal racial gerrymanders, because they drew districts using the voters' racial identities.

The congressional maps that were thrown out this week were drafted in a special legislative session in 2016 after the state lost the racial gerrymander cases. In other words, the GOP ignored those rulings and found another way to keep its House majority. 

The Republican gerrymanders were the starting line of war on blue voters this decade. After the 2010 election where a Tea Party wave elected a GOP state legislative majority, Republicans controlled the redistricting process. Two years later in 2013, the Supreme Court threw out the enforcement formula in the Voting Rights Act in 2013, which required changes in voting rules in covered states be cleared by the Justice Department.

That ruling prompted North Carolina’s gerrymander-created red majority to pass a series of laws to undermine Democratic chances of winning elections. The Legislature quickly repealed Election Day voter registration. It imposed stricter voter ID laws to get a ballot at polling places. It ended early voting on weekends, which was popular with black clergy and congregations. It also ended a program where high school students could register to vote before they turned 18.

Of course, voting rights groups sued. In July 2016, a federal appeals court threw out these anti-voter laws saying they “target African-Americans with almost surgical precision.” That decision, like this week's ruling over the illegal partisan gerrymander, cited boasts by leading North Carolina Republicans about hijacking the process.

However, losing in court didn’t stop the state’s GOP from again targeting Democrats in 2016. It redrew its U.S. House district map to keep a red lock on its congressional delegation—which was struck down this week. It took other anti-voter steps. For example, there were 158 fewer polling places in 40 counties across the state, which reduced Black turnout 16 percent compared to 2012. Pro-GOP groups also made extensive efforts to purge thousands of legal but inactive voters in blue epicenters.

When Republican Gov. Pat McCrory lost his re-election that fall—a statewide race, so there was no gerrymander—he quickly accused the Democrats of voter fraud, but offered no proof, as Democracy North Carolina documented in an extensive report

Judge Wynn ordered the North Carolina Legislature to create a new landscape of U.S. House districts by January 29, or his court would oversee a process in which an independent expert would do so. The state Republican Party chair accused him of “waging a personal, partisan war” on them, and tweeted this was a “hostile takeover.” 

That’s rich—accusing a federal appeals court of exactly what the GOP has done this decade. But the latest North Carolina voting rights victory is a cautionary tale. It’s taken years for federal courts to redress the structural imbalances the state’s Republicans intentionally created in their voting system.

Moreover, there’s no guarantee that Judge Wynn’s decision will be the last word. The U.S. Supreme Court last fall heard a case where another federal court ruled Wisconsin’s 2011 drawing of its state legislative districts was another unconstitutionally partisan gerrymander. It has yet to issue a ruling in that case. It also agreed to hear a Maryland gerrymander case this year involving a gerrymander favoring Democrats.

Stephanopoulos, who led the anti-gerrymander legal team in the Wisconsin litigation that ended up before the Supreme Court, noted that the stakes in these cases are bigger than the fortunes of either party. The core issue, he said, is whether elected government is going to represent the citizenry and not a minority party seizing power.

“The court clearly understood the core harm of partisan gerrymandering: that it entrenches the gerrymandering party in office, awarding it more legislative power than it deserves given its actual appeal to the electorate,” he wrote about the North Carolina ruling. “The court repeatedly defined gerrymandering as ‘the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.’ The court also observed that gerrymandering ‘constitutes a structural [constitutional] violation because it insulates Representatives from having to respond to the popular will.’”

Stephanopoulos also noted that the ruling emphasized the judicial branch must step in when political power is abused.

“And warming the heart of constitutional law professors everywhere, the court twice cited John Hart Ely, the progenitor of the argument that judicial intervention is most necessary (and most appropriate in a democracy) when there has been a malfunction of the political process,” he continued. “Gerrymandering, of course, is the quintessential political malfunction.”

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Steven Rosenfeld is a senior writing fellow of the Independent Media Institute, where he covers national political issues. He is the author of several books on elections, most recently Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election (March 2018, Hot Books).