Slate: The North Carolina GOP’s Latest Ploy to Save Its Partisan Gerrymander Is Almost Literally Unbelievable

North Carolina Republicans are in trouble. On Nov. 6, voters elected Anita Earls, a civil rights attorney, to the state Supreme Court, cementing a 5–2 progressive majority. One week later, voting rights advocates filed a lawsuit in state court alleging that North Carolina’s gerrymandered legislative districts run afoul of the state constitution. Because the case revolves around the North Carolina Constitution and does not even touch on federal law, Republican legislators would seem to be stuck in the state judiciary, hurtling toward Earls’ court. There is simply no federal question for federal judges to adjudicate.

The North Carolina GOP, however, has never let a legal principle stand in the way of its will to power. And so, on Friday, lawyers for the General Assembly—which is dominated by Republicans thanks to the gerrymander in question—attempted to remove the case to federal court, which has no authority to hear it. This patently frivolous endeavor is not actual lawyering; it is a bald faced effort to run down the clock and prevent the North Carolina Supreme Court from ruling in time for the 2020 election. In effect, Republicans are trying to exploit the federal courts to preserve their own illicit gerrymander for as long as humanly possible. …

The Pennsylvania Supreme Court recently ruledthat a similar provision in its own state constitution outlawed partisan gerrymandering, explaining that “a diluted vote is not an equal vote.” It seems quite likely that the North Carolina Supreme Court, led by Earls, will reach the same conclusion after hearing this lawsuit.

GOP lawmakers are terrified of such a ruling, since it would threaten the legislative majority they entrenched by diluting Democratic votes. So after Common Cause and the North Carolina Democratic Party filed their lawsuit in November, the General Assembly—which has given itself the power to defend its gerrymander in court—did not defend its map on the merits. Instead, it filed a motion to remove the case to federal court. Federal judges are not typically permitted to hear cases that exclusively involve interpretation of state law. The General Assembly, however, argued that the plaintiffs are asking the state to violate the Voting Rights Act, the 14^thAmendment’s Equal Protection Clause, and the 15^th Amendment’s bar on race-based voting restrictions. It asserts that because the relief sought would infringe upon federal law, the federal judiciary may snatch the case out of state court. …

I am frankly unsure whether the legislature’s lawyers actually understood the implications of this argument, because if they did, they would surely be too embarrassed to commit it to paper.

The coup de grâce, though, is the General Assembly’s assertion that a new map would infringe upon the Voting Rights Act. In short, GOP attorneys suggest that they drew the current map to comply with the VRA by preserving the power of minority votes, and that a new map would dilute that power. A strange argument on its own terms—but an outlandish one given that the General Assembly already told a federal court that it did not draw the current map to comply with the VRA. Seriously: In a 2017 filing, Republican attorneys declared that the Legislature did not consider race in drawing a new map because it “did not conclude that the Voting Rights Act obligated it” to.

Were these lawyers lying in 2017? Are they lying today? Either way, the Common Cause plaintiffs rightly argue that the General Assembly should be legally prohibited from making a claim that it flatly contradicted in court one year ago.