State of Elections

William & Mary Law School | Election Law Society

State Supreme Courts

The North Carolina Supreme Court’s Historical Role in North Carolina Redistricting

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By William & Mary Student Contributor

Can legislatures promulgate any election rule or redistricting plan, free of any state institutional checks and balances, subject only to intervention by Congress or the U.S. Supreme Court? That question will be answered by the Supreme Court this term in Moore v. Harper (“Moore”). The argument that the plaintiffs seek to advance is based on the independent state legislature theory (ISL). Moore, who is Speaker of the North Carolina House of Representatives, and his co-plaintiffs argue that the Elections Clause of Article 1, Section 4 of the U.S. Constitution allocates the authority to draw congressional districts exclusively to state legislatures. Therefore, according to ISL, the North Carolina Supreme Court cannot exercise any power regarding the time, place, and manner of elections. Further ISL would deem the North Carolina Supreme Court’s decision in Harper v. Hall (“Harper”) unconstitutional, because the legislature’s redistricting maps violated North Carolina’s constitutional guarantee to equal voting power.

 Similar to state supreme courts across the nation, the North Carolina Supreme Court had ruled on redistricting prior to 2022. In Harper, the North Carolina Supreme Court principally cited to two cases, where the court held that those maps infringed upon the rights of North Carolinians. Stated bluntly, the court declared, “Our state constitution provides greater protection of voting rights than the federal Constitution,” citing 2009 case Blankenship v. Bartlett and 2002 case Stephenson v. Bartlett. To better understand the role that the North Carolina Supreme Court has historically played in redistricting and what the U.S. Supreme Court restricts it from doing, it is helpful to re-examine Blankenship and Stephenson, as well as past cases in which the state high court has grappled with how maps are drawn and what equality in voting really means. 

As early as 1875, the court declared it “too plain for argument” that the General Assembly’s malapportionment of election districts “is a plain violation of fundamental principles.” This line was consistent with the court’s first assertion of duty of judicial review of legislative enactments for compliance with the North Carolina Constitution in 1787. However, the state high court has been historically reticent—like the Supreme Court in Colegrove v. Green—to wade into political waters, and in 1939 held that “[t]he [redistricting] question is a political one, and there is nothing the courts can do about it.” The court followed the revolution of election law in the 1960s with the recognition of equal protection claims in Baker v. Carr and Reynold v. Sims, establishing the one-person, one-vote principle, and the passage of the Voting Rights Act in 1965. North Carolina’s Supreme Court did not enter the thicket in a meaningful manner until Stephenson. 

In 2002, North Carolina voters challenged the state legislative redistricting plans adopted by the General Assembly in Stephenson on the basis that the plans violated North Carolina’s constitution. The court specified the criteria that the General Assembly could apply in redistricting, such as, partisan advantage, incumbency protection, and communities of interest. It ultimately found that the 2001 legislative redistricting plans violated the “whole-county provisions” of the state constitution. 51 of 100 counties were divided by the senate redistricting plan and 70 of 100 counties were divided by the house redistricting plan. Whole-county provisions of the state constitution require the formation of single-member districts in legislative redistricting plans, and the boundaries of such single-member districts generally may not cross county lines. The court invoked the state constitution’s equal protection clause to hold that “the right to vote on equal terms is a fundamental right” and that each North Carolinian had the right to “substantially equal voting power.” The court’s holding relied on its findings in 1990 case, Northampton County Drainage Dist. Number One v. Bailey, in which the court reiterated that “the right to vote on equal terms is a fundamental right.” The court’s interpretation of the state equal protection clause varied from the federal Equal Protection clause, which does not subject multi-member districts to strict scrutiny—as the court did in this case—granting North Carolinians greater protection of voting than the U.S. Constitution. 

In Blankenship, the North Carolina Supreme Court again interpreted the state equal protection clause to afford greater protection to voters. At issue were districts for elected judgeships, in which voters in a new district had four to five times more voting power than North Carolinians in other districts. Recognizing the tension in electing judges as representatives, while not representing people, the court held “that the right to vote in superior court elections on substantially equal terms is a quasi-fundamental right which is subject to a heightened level of scrutiny.” The court cemented the “right to vote on equal terms” and one person, one-vote in North Carolina, even though federal courts have held the one-person, one-vote standard of the federal Equal Protections clause is inapplicable to state judicial elections.

In Harper, the court applied the principles of Stephenson, Bartlett, and its jurisprudence, spanning to its very beginnings, to hold that excessive partisan gerrymandering does not conform to the state constitution. The ISL theory challenges the court’s ability to uphold its interpretation and application of North Carolina law. While the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable, the North Carolina Supreme Court has historically conferred greater protections of North Carolinians’ voting rights, and the Court further endorsed its role in 2018 via Rucho. Four years later, Moore’s petition to the U.S. Supreme Court to strip the state high court of its ability to uphold “a right to vote on equal terms” and find partisan gerrymandered maps unconstitutional will be heard this term, in one of the most consequential cases for democracy and representative government, not only for North Carolina, but for every state in the Union. 

A Case Study in Independent Redistricting – Washington State

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By Megan Bodenhamer

Any native of Washington State knows, first-hand, the degree of political polarization that exists in the state. The western part of Washington State encompasses the most heavily populated and liberal part of the state, including Seattle and the rest of King County. In contrast, the eastern part of the state is much more conservative and rural. This split makes politics in the state especially contentious and divisive. Interestingly, as a result of this stark geographical and cultural divide, the eastern part of Washington State has threatened to secede and create its own state quite frequently throughout history. 

This split political climate forms the background for all legal and political issues in the state. This is especially true for election laws and redistricting. In most states, politicians or legislatures draw the maps for state elections. In other words, the politicians whose job security depends on elections are the same people who draw the districts that determine the outcome of elections. In places like Washington, where political opinions are deeply entrenched and divisive, this can be problematic. In thirty-four states, districting for state elections is done predominately by state legislatures. Washington is just one of fourteen states that has an independent districting commission. The remaining two states have a hybrid model. 

The body that draws maps in Washington is called the Washington State Redistricting Commission, which is a board made up of five commissioners. Four of the commissioners are selected by the majority and minority leaders in each chamber of the state legislature. These four commissioners, then, vote on a fifth commissioner who serves as the non-voting chair. The non-voting chair’s role is to establish areas of common ground and facilitate compromise. This results in a bi-partisan commission with two seats for the Democratic Party and two seats for the Republican Party, who decide the fifth, non-partisan chair together. This makes Washington unique because it is only one of nine states with a non-politician districting commission. This means that commissioners may not have been elected as a district, county, or state party officer, nor may they have been another type of elected official within two years of appointment to the commission. Additionally, commissioners may not have been a registered lobbyist within one year of appointment. There are also requirements during a commissioner’s appointment. Commissioners may not campaign for elected office or participate in or donate to any political campaign for state or federal elected office. For two years following their service, commissioners may not hold or campaign for congressional or state legislative office. 

In a staunchly divided state like Washington, it would seem beneficial to have a non-politician and bipartisan districting commission. However, it is questionable whether these requirements actually prevent political gamesmanship and gerrymandering. First, the prohibition on politicians is not a difficult hurdle to overcome. Two years without running for public office hardly prevents someone with political motivations or budding political ambitions from being selected to the commission. Further, because commissioners are selected by state legislatures, they are likely colleagues or affiliates of politicians, not far-removed non-partisan individuals as is required. Further, because the majority and minority leaders each get to pick a representative, it is likely they will pick a commissioner that represents their political ideations. Being selected by a group of politicians is not altogether different from the leaders appointing a politician to the commission.

The Washington State Redistricting Commission has not been without its flaws. The Commission was unable to come to a consensus and meet its November 15, 2021, deadline to draw district maps. Instead, the Washington State Supreme Court was tasked with drawing the state’s new legislative maps. In March of this year, the chair of the commission, Sara Augustine, resigned from her position. Her decision came after the commission failed to intervene in a lawsuit regarding its own maps. She claims that in failing to defend the maps, state authorities have undermined the compromise that went into creating maps that protect the public interest. Moreover, the Commission is under suspicion for conducting their deliberations of map drawing in private, in violation of a Washington law called the Open Public Meetings Act. This act requires all meetings of governing bodies of public agencies be open to the public. Clearly, the realities of bipartisan map drawing are not as idyllic as they may seem on paper.

While the basis of a non-politician and bipartisan districting commission sounds like a modern solution to districting issues, Washington State is an important case study testing out this theory. While the Commission may not have been wholly successful, it will be interesting to see how Washington approaches its next redistricting. If Washington, with its intense political polarization, can find a way to manage bi-partisan and apolitical districting, perhaps the rest of the nation could follow its lead.