• Carolina Journal

New brief says N.C. redistricting plaintiffs want to ‘disestablish’ legislative authority


Lawmakers preparing for Oct. 4 arguments before the N.C. Supreme Court took aim Friday at critics of the General Assembly’s election maps. Legislators say their redistricting critics are trying to kill the legislative branch’s power to draw the maps.


A new brief in the redistricting case Harper v. Hall argues that state courts should have accepted the General Assembly’s second version of a proposed congressional map this spring. That map complied with guidelines the state Supreme Court set out in February when it threw out the original map, according to the brief.



A three-judge panel, using Supreme Court guidance, rejected the “remedial” congressional map while upholding revised maps lawmakers drew for N.C. House and Senate elections. The court’s own outside “special masters” designed a congressional map for the 2022 election cycle.


“Plaintiffs-Appellees cannot escape the simple fact that N.C. Sess. Law 2022-3 (“the Remedial Congressional Plan”) falls within the ranges this Court recognized as presumptively constitutional under the metrics it identified and using the set of election data the Superior Court and this Court relied on most heavily” when rejecting the original map, according to the brief.


“The Superior Court made no findings of how it believed the Remedial Congressional Plan scored and did not explain how the Remedial Legislative Plans pass constitutional muster but the Remedial Congressional Plan does not, even though the General Assembly constructed and evaluated all three plans in the same way,” wrote attorney Phillip Strach, who represents Republican legislative leaders.


“Plaintiffs-Appellees’ Joint Brief attempts to bring their partisan-gerrymandering theory full circle to complete the task of disestablishing the General Assembly as the redistricting authority in North Carolina,” Strach wrote. “In Plaintiffs-Appellees’ view, there is no need to establish discriminatory intent to jettison the General Assembly’s plan — even though the core finding of Harper was one of discriminatory intent — and there is also no need for this Court to commit to a clear method of measuring the supposed partisan effects of the General Assembly’s plan.”


“As Plaintiffs-Appellees would have it, this Court can conceal any manageable standard from the branch of government constitutionally assigned with the redistricting authority,” Strach argued. “Then, wait until it redistricts under a legal blindfold, and announce … that the legislative branch got redistricting wrong based on some new analysis or new set of data redistricting challengers, purportedly enlightened experts, or judges can devise with the benefit of hindsight.”


Under the redistricting critics’ argument, lawmakers cannot rely on standards the state Supreme Court set in February in the same Harper v. Hall case.


“So long as there is some different way to do the analysis, and so long as that different way achieve[s] their desired result of condemning what the General Assembly did — whatever it did — the plan must go,” Strach wrote. “That is, Plaintiffs-Appellees propose one, and only one, legal test: whatever the General Assembly did, it was wrong.”


Courts should have presumed that the General Assembly’s election maps were constitutional, Strach argued. “If the presumption of constitutionality means anything, it demands judicial deference to the General Assembly’s reasonable choice among competing ways to arrive at the relevant measurements of partisan bias,” he wrote. “[T]he Superior Court was duty bound to presume the General Assembly got it right and only reject its choices if established beyond doubt as inaccurate, arbitrary, or unreasonable. That was not found and could never be shown here.”


Accepting the redistricting critics’ arguments “would, if accepted, assault the separation of powers, work a severe indignity on the branch of government closest to the People, and ultimately undermine the very democratic principles Plaintiffs-Appellees purport to advance in this case,” according to legislators’ brief.


Strach also reminded N.C. Supreme Court justices that lawmakers had asked the court to dismiss the appeal involving the congressional map. Lawmakers filed the appeal months ago, but previous legal rulings ensured that the court-drawn congressional map would be used in the 2022 election cycle.


The Supreme Court has not addressed lawmakers’ request. Meanwhile, redistricting critics continue to pursue their appeal against the N.C. House and Senate district maps.

Nothing in the current Harper v. Hall dispute will affect election maps for the current general election. But the N.C. Supreme Court could issue a new ruling that affects the way state lawmakers approach congressional and legislative redistricting for the 2024 election cycle.

The state Supreme Court has a 4-3 partisan split favoring Democrats. Two seats now held by Democrats are up for election in November. A Republican win in either race would flip the partisan majority.


The court’s three current Republican justices objected to their Democratic colleagues’ decision to hear new oral arguments in Harper v. Hall on Oct. 4, during the middle of an election season. Republican justices warned that the hearing could lead to voter confusion.

Right-leaning political observers accuse the Harper case’s left-of-center activist plaintiffs of rushing to secure a favorable Supreme Court ruling this year. If the case stretched into 2023, a newly constituted court could produce a different outcome.

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