Patterson Harkavy challenges NC congressional map as an unconstitutional partisan gerrymander

This morning, Patterson Harkavy and Arnold & Porter filed suit in Wake County Superior Court, challenging North Carolina’s congressional districts as unconstitutional partisan gerrymanders. The lawsuit follows a decision earlier this month declaring that state legislative districts violated the North Carolina Constitution on similar grounds, and is supported by the National Redistricting Foundation.

The complaint’s introduction reads as follows:

  1. “[T]he constitutional rights of North Carolina citizens are infringed when the General Assembly . . . draws district maps with a predominant intent to favor voters aligned with one political party at the expense of other voters.”  Common Cause v. Lewis, 18-CVS-014001, slip. op. at 6 (N.C. Sup. Ct. Sept. 3, 2019).  Partisan gerrymandering “strikes at the heart of the Free Elections Clause” of North Carolina’s Constitution, a provision with no federal analogue that “guarantees that all elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the People.”  Id. at 9, 305.  Partisan gerrymandering also violates the North Carolina Constitution’s guarantees of equal protection and free expression, both of which provide broader protections for voting rights than their federal counterparts.  Id. at 307-31.
  2. This case concerns North Carolina’s 2016 congressional map, which may be the most extreme and brazen partisan gerrymander in American history.  There is no dispute that the 2016 congressional map reflects an extreme and intentional effort to maximize Republican advantage.  Legislative Defendants proudly admitted it at the time.  They adopted “Partisan Advantage” as an official criterion, directing that the districts be constructed to “maintain the current partisan makeup of North Carolina’s congressional delegation,” namely “10 Republicans and 3 Democrats.”  Legislative Defendants admitted that they instructed their mapmaker, Dr. Thomas Hofeller, to use partisan voting histories to rig the district lines to entrench a 10-3 Republican advantage.  Defendant Representative David Lewis asserted that the map was drawn in this manner because he believes “electing Republicans is better than electing Democrats,” and the only reason Legislative Defendants sought a 10-3 Republican advantage was because they “did not believe it would be possible to draw a map with 11 Republicans and 2 Democrats.”
  3. With Dr. Hofeller’s help, Legislative Defendants succeeded in rigging North Carolina’s congressional elections.  Republicans have won 10 of 13 seats in both elections under the 2016 Plan, including in the blue wave of 2018 when Democratic congressional candidates received a majority of the statewide vote after adjusting for an uncontested race.  The 2016 map is impervious to “the will of the People.”  Common Cause, 18-CVS-014001, slip. op. at 9, 306.
  4. In 2019, in a case involving the same congressional map at issue here, the U.S. Supreme Court held that partisan gerrymandering claims are not justiciable under the federal constitution.  See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).  But in so holding, the Court made clear that the solution to partisan gerrymandering lies with the states, because “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”  Id. at 2507.  The courts of this State have now held that the North Carolina Constitution provides precisely such standards and guidance.  Just weeks ago, a three-judge panel of this Court invalidated North Carolina’s state legislative maps as unlawful partisan gerrymanders in violation of North Carolina’s Free Elections Clause, Equal Protection Clause, and Freedom of Speech and Assembly Clauses.  See Common Cause, 18-CVS-014001, slip. op. at 298-331. 
  5. As this Court explained in Common Cause v. Lewis, North Carolina’s 2016 congressional map “arose in remarkably similar circumstances” as the state legislative maps that the Court struck down and ordered redrawn.  Id. at 298.  The 2016 congressional map should now meet the same fate as the unconstitutional and invalidated state legislative maps.  The facts of this case are undisputed, and the law of North Carolina is now settled.  This Court should invalidate the gerrymandered 2016 congressional map immediately and order a new, fair map for use in the 2020 elections. 

Click here to view the complaint.