Updated 5:07 p.m.
The North Carolina Supreme Court heard oral arguments Wednesday morning as to whether Republican-drawn congressional and state legislative maps are allowed under the state Constitution.
The hearing comes after a three-judge panel last month said the maps were drawn to help Republicans but allowed them to stand.
The Supreme Court’s decision — which could come in a week — may determine the balance of power in the state for the next decade. The state’s congressional map gives Republicans the advantage in 10 of 14 seats. The maps for the state House and Senate could give the GOP super-majorities that would make it easy for Republicans to override vetoes by Democratic Gov. Roy Cooper.
During last month’s trial, each side litigated the maps for four days.
Wednesday’s hearing was different, with each side speaking for just 45 minutes. The justices often peppered the attorneys with rapid-fire questions.
Chief justice Paul Newby, a Republican, suggested that even gerrymandered maps aren’t foolproof and can’t always predict the winner.
He noted that the maps used in the 2010 elections were drawn by Democrats a decade earlier, designed to give them the edge.
“And yet with those same gerrymandered maps in 2010, those numbers flipped,” said Newby, referring to Republicans winning majorities in the state House and Senate that year under Democratic-drawn maps.
“(There were) the same maps, the same precincts, the same voting districts," Newby said. "How would you explain that?”
Stanton Jones, an attorney for a group of voters suing over the maps, said Republicans were trying to protect their advantage.
“Using prior statewide election results, map-makers have very sophisticated tools to measure the partisanship of districts and predict their performance with surgical precision,” Jones said.
Most of Newby’s questions and comments were about the North Carolina Constitution having little guidance as to how maps should be drawn, other than saying it’s the legislature’s job. He said he struggled to understand what guidance the court would give lawmakers to make sure districts are fair.
He asked the plaintiff’s attorneys whether the General Assembly should use nonpartisan criteria to draw maps and then overlay the maps with statewide election results to see if they were fair.
“If the maps as drawn indicate some kind of partisan advantage, then that is unconstitutional. Is that what you are saying?” Newby asked.
Attorney Zach Schauf is representing the League of Conservation Voters, another plaintiff. He said yes.
“That is the only way we submit that you can answer the question that Section 2 of (the North Carolina Constitution) asks,” he said. “And (for you) to decide whether this is still a government that’s founded on the will of the people.”
Newby’s questions were sympathetic to the Republicans' argument that it’s impossible for the court to lay out specific criteria as to what is a fair map.
Attorney Phil Strach, representing the GOP defendants, said the plaintiffs have not shown the maps are extreme gerrymanders.
The new congressional map gives Republicans the advantage in 10 of 14 seats. In a wave year, they could win 11.
Strach noted that an expert for the plaintiffs, University of Michigan political scientist Jowei Chen, testified at the original trial last month that the most common computer-drawn map gives Republicans the edge in nine seats. (His computer simulation would have more competitive seats, however.)
“It’s clear the number of districts at issue, in this case, is marginal at best,” Strach said. “One district. That’s extreme? I think that’s a hard thing to say.”
There are four Democratic justices and three Republicans, including Newby. Justice Anita Earls asked the most questions of the Democratic justices.
She asked Strach if the state Constitution’s equal protection clause protects voters based on their race.
Strach said yes.
Then Earls asked:
“Why shouldn’t our state constitution’s Equal Protection Clause also protect people from discrimination, intentional discrimination on the basis of party affiliation?”
Strach said that race is an immutable characteristic. He said partisanship is not.
“And there’s no basis in our opinion for this court to prefer Republicans and Democrats over other people and create a new right for them,” Strach said.
Earls continued.
“Just because an individual voter can change their affiliation to escape their discrimination, how does that still make it no longer a protected interest to be free from discrimination?” she asked Strach.
He said creating a “right for a group” is a concept that’s foreign to our constitution.
Earls asked about a hypothetical in which the General Assembly passed a law that said: “Individuals can give $5,000 to any Republican candidate but they can only give $2,000 to a Democratic candidate.”
She asked: Would that be impermissible under the state Constitution’s guarantee of free speech and association?
“I don’t know, but if it would be a violation of each individual’s right to give that money, it wouldn’t be a right held by Republicans or Democrats,” Strach said.
Earls replied, “exactly.”
She then said that unfair maps also violate an individual’s rights.
If the court rejects the maps, it’s unclear what will happen next. Republicans would want a second chance to redraw the maps, while one of the plaintiffs, the League of Conservation Voters, wants the court to enact maps it drew.
That congressional map could give Democrats the edge in eight of 14 seats.
In 2019, a three-judge panel ruled the GOP's maps were unconstitutional and ordered the legislature to draw new ones. Republicans did not appeal that case to the state's highest court.
