News

Cooper, Stein step into redistricting battle

By Mitch Kokai, Carolina Journal, Published: January 24, 2022

Gov. Roy Cooper and N.C. Attorney General Josh Stein want the state Supreme Court to throw out new statewide election maps. They've outlined a plan that would help the court draw new maps without legislative input.

In a motion and friend-of-the-court brief they filed late Friday, Cooper and Stein urged the N.C. Supreme Court to accept their input when settling a legal fight over congressional and legislative election maps.
"Our constitution is premised on the principle that all political power is 'derived from the people' and 'founded upon their will only,'” said the brief submitted by N.C. Solicitor General Ryan Park for Cooper and Stein. "When districts are drawn to further the interests of one party, however, power does not derive from the people, but rather from incumbent legislators who need not be responsive to the will of the people."
Cooper and Stein are both Democrats. They are asking the state Supreme Court to invalidate the work of a General Assembly led by Republicans. The high court has a 4-3 Democratic majority.
"The Governor and the Attorney General respectfully ask this Court to confirm that partisan gerrymandering is unconstitutional, invalidate the districting plans enacted by the General Assembly, and ensure that our State has fair and competitive elections that are responsive to the popular will," the brief added.
Among the most interesting elements of the document is an omission. Not once in 73 pages do Cooper and Stein use the word "extreme."
The plaintiffs officially challenging election maps argue that Republican lawmakers engaged in "extreme" partisanship when drawing maps for North Carolina's 120 state House seats, 50 state Senate seats, and 14 seats in the U.S. House of Representatives. State courts always have permitted some partisan considerations in the mapmaking process, also known as redistricting. But "extreme" partisan bias ensures that the challenged maps violate the N.C. Constitution, according to plaintiffs.
Cooper and Stein ignore that distinction. In their brief, any degree of "partisan gerrymandering" runs afoul of constitutional safeguards.
"Partisan gerrymandering ... violates many of the protections in our declaration of rights," Cooper and Stein argue. "When elections are impervious to democratic sentiment, they are not 'free.' When certain voters are systematically discriminated against by self-serving legislators, they are not 'equal.' And when districts burden voters based on their political expression, they violate the people’s freedoms of speech and assembly."
Cooper and Stein "urge the Court to clarify that the North Carolina Constitution bars the legislature from drawing districts that unduly favor one political party except when the burden can be justified by nonpartisan districting criteria."
The governor and attorney general suggest that the Supreme Court could devise a test that would identify unconstitutionally partisan election maps.
"[A]dvances in computer modeling make it possible to easily compare enacted districting plans with other alternative plans, to assess how much the enacted plans deviate from median neutral plans that were drawn based on nonpartisan redistricting criteria," Cooper and Stein argued.
"Thanks to those advances, this Court could adopt a rule that is similar to the one the U.S. Supreme Court has developed to govern allowable population deviations," they added. "Under that rule, an enacted plan would be subject to strict scrutiny unless the plan stays within 5% of the median outcome, measured by seat count, at a statewide level across a range of electoral circumstances."
Cooper and Stein call on the Supreme Court to reject the challenged maps, then "oversee remedial proceedings directly." They offer six suggestions for the process.
First, consider delaying primary elections beyond May 17 if necessary. Second, announce a decision in the case before releasing final written opinions.
"Third, this Court could manage the remedial process itself," according to the brief. That means the Supreme Court would cut out the three-judge trial panel that oversaw a four-day trial on the election maps. That unanimous bipartisan panel upheld the challenged maps as constitutional.
Fourth. the Supreme Court could give legislators an opportunity to redraw maps. "In such a decree, this Court should provide clear guidance to the General Assembly on how to draw districts that comply with the constitution," the brief explained. "For example, the Court could direct the legislature to draw districts within 5% of the median outcome expected from nonpartisan redistricting criteria, at a statewide level, across a range of electoral circumstances."
Fifth, the court could appoint an outside "special master." That expert could review legislative maps and prepare maps of his own. "If the General Assembly fails to comply with the constitution’s bar on partisan gerrymandering a second time, this Court could order the State to use one of the median plans created by the special master."
Sixth, the governor and attorney general urge the Supreme Court to flout an existing provision in state redistricting law. Current law says that if the General Assembly fails to fix defects in its election maps within a prescribed time, "the court may impose an interim districting plan for use in the next general election only."
"That provision purports to limit this Court’s authority to remedy constitutional violations," according to Cooper and Stein's brief. "The General Assembly, however, lacks authority to place limits on this Court’s power to remedy constitutional violations."
In other words, Cooper and Stein argue that the Supreme Court could order that its maps will remain in place beyond a single election cycle. In the case of legislative elections, state constitutional provisions could prevent the General Assembly from drawing any new maps until 2031.
"[T]he Governor and the Attorney General respectfully urge this Court to hold that partisan gerrymandering violates our constitution," the brief concluded. "This Court is the people’s only hope. The people of our State need this Court to uphold their right to self-government through free elections and to remedy these constitutional violations because the people have no other means to make sure that the General Assembly truly represents them."
Cooper and Stein submitted their brief as election map challengers faced a deadline Friday to file briefs at the state Supreme Court. The maps' defenders face a similar deadline next Friday, Jan. 28.
The state Supreme Court will hear oral arguments in the case on Feb. 2.