Common Cause v. Lewis
On November 4, 2019, Wake County Superior Court Judge Vince Rozier lifted a confidentiality designation on more than one hundred thousand documents created by the late Thomas Hofeller, the Republican operative responsible for many of the most controversial GOP gerrymanders of the last decade. Read the order here. The order lifts a confidentiality designation on documents pertaining to Arizona, Maryland, Mississippi, Missouri, North Carolina, Tennessee, Virginia, and Nassau County, Nueces County and Galveston in Texas. The court gave Hofeller’s former company, Geographic Strategies, more time to substantiate a claim on other files that it has said are proprietary.
Common Cause v. Lewis
On September 3, 2019, Common Cause and our co-plaintiffs won a historic victory when a three-judge state court panel in North Carolina ruled that the state legislative districts the North Carolina General Assembly drew in 2017 to remedy a racial gerrymander were an illegal partisan gerrymander that violated the North Carolina Constitution.
Why does this matter?
Whether they favor Democrats or Republicans, gerrymanders cheat voters.
When elected officials don’t have to worry about getting reelected, they lose their incentive to be responsive to constituents. Legislators are supposed to represent everyone, not just people who look like them, the wealthy and those who share their views.
We sued because legislators and mapmakers robbed North Carolinians of their ability to elect the candidates of their choice through blatant partisan gerrymanders. They produced district lines that effectively let them choose the voters rather than permitting voters to choose their representatives. That’s the exact opposite of government of the people, by the people, and for the people as promised in our Constitution.
What are the legal claims?
The North Carolina partisan gerrymanders are unconstitutional and invalid because they violate the rights of the plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution’s Equal Protection Clause, Free Elections Clause, and Freedom of Speech and Freedom of Assembly Clauses.
Who are the plaintiffs?
Common Cause, the North Carolina Democratic Party, numerous North Carolina voters, including registered Democrats and registered unaffiliated voters who regularly vote for Democrats.
What are the facts?
In 2011, as part of a national movement by the Republican Party to entrench itself in power through redistricting, North Carolina Republicans’ mapmaker manipulated district boundaries with surgical precision to maximize the political advantage of Republican voters and minimize the representational rights of Democratic voters. And it worked. In the 2012, 2014, and 2016 elections, Republicans won veto-proof super-majorities in both chambers of the General Assembly despite winning only narrow majorities of the overall statewide vote.
In 2017, after federal courts struck down some of the 2011 districts as unconstitutional racial gerrymanders, Republicans redoubled their efforts to gerrymander the district lines on partisan grounds. They instructed the same Republican mapmaker to use partisan data and prior election results in drawing new districts. The results should outrage anyone who believes in democracy. In both the state House and state Senate elections in 2018, Democratic candidates won a majority of the statewide vote, but Republicans still won a substantial majority of seats in each chamber. The maps are impervious to the will of the voters.
It gets worse. Because North Carolina is one of the few states in the country where the Governor lacks power to veto redistricting legislation, the General Assembly alone will control the next round of redistricting after the 2020 census. Accordingly, as things currently stand, the Republican majorities in the General Assembly elected under the existing maps will have free reign to redraw both state legislative and congressional district lines for the next decade.
This perpetuates a vicious cycle in which representatives elected under one gerrymander enact new gerrymanders both to maintain their control of the state legislature and to rig congressional elections for ten more years. Only the intervention of the judiciary can break this cycle and protect the constitutional rights of millions of North Carolinians.
What are you seeking?
We asked the court to rule that the North Carolina Constitution prohibits partisan gerrymandering, to throw out the gerrymandered 2017 plans and to appoint a referee (also known as a special master) to create new, constitutional legislative districts for the 2020 primary and general elections. The new districts must be drawn without any partisan political consideration.
How does this compare with Common Cause v. Rucho?
Common Cause also was a plaintiff in a challenge to North Carolina’s federal Congressional map, which was drawn by the same mapmaker as the state legislative maps and for the same partisan purpose. A three-judge panel of the trial court sided with Common Cause and declared the Congressional map an unconstitutional partisan gerrymander. The U.S. Supreme Court overturned this decision and ruled that federal courts cannot police partisan gerrymandering. Fortunately, this decision has no impact on the ability of reformers to challenge maps as illegal partisan gerrymanders in state court under state law.
Where is the Lewis case now?
On September 3, 2019, the trial court handed the plaintiffs and democracy a sweeping victory by striking down North Carolina’s General Assembly districts as an illegal violation of the North Carolina Constitution. The court mandated the following next steps:
- Current districts are unconstitutional and may not be used in the 2020 elections.
- The General Assembly has until September 18, 2019 to redraw maps in a fully transparent process that must be done in public hearings with visible computer screens, and in which no edits or revisions may be done in private.
- The order provides districting criteria, including prohibiting the use of partisan considerations and election data, a prohibition against using the unconstitutional districts as a starting point for the new maps, and adherence to the Voting Rights Act and other federal law.
- The court will appoint a referee to assess the General Assembly’s remedial maps or to draw maps if the General Assembly fails to do so.
On October 28, 2019, the court approved remedial districts that legislators submitted. Plaintiffs objected to several house districts prior to court approval and are considering an appeal of the decision.