The Election Law Clinic, along with local counsel Poyner Spruill LLP, filed a friend of court brief on behalf of Professor Charles Fried asking the North Carolina Supreme Court to end partisan gerrymandering in the state. On February 4, 2022, the Court declared the legislative maps unconstitutional and asked for redrawn maps to be submitted.

BACKGROUND

Since 1986, the United States Supreme Court has recognized that partisan gerrymandering is harmful to democracy, but in a 2019 ruling, it found that partisan gerrymandering was not justiciable under the federal Constitution. Importantly, the U.S. Supreme Court noted that nothing stopped state courts from addressing partisan gerrymandering through their state constitutions or statutory provisions. The North Carolina Constitution’s Free Elections Clause was used by a North Carolina Superior Court in 2019 to strike down the State House and Senate plans as partisan gerrymanders.

The current cases before the North Carolina Supreme Court involve challenges to the newly enacted state legislative and congressional maps, all of which are extreme partisan gerrymanders in favor of Republicans. 

The amicus brief explains that the two-tiered federal system “is the defining feature of American governance.  State constitutions’ inclusion of additional layers of protection for individual rights reflect the best of our federalist traditions—allowing the people of a state to organize and restrain their government beyond what the federal Constitution requires.”  The brief identifies numerous rights protected by state constitutions that go beyond federal protections, and concludes that the North Carolina Constitution’s Free Elections and Equal Protection Clauses demand heightened scrutiny on issues of redistricting and the Court should take “the wariest of eyes to partisan gerrymandering.”  

The cases, Harper v. Hall and NCLCV v. Hall, are on an expedited track, with oral arguments scheduled for February 2, and a decision expected weeks later.  The North Carolina Supreme Court has already moved the primary date for 2022 elections from March 8 to May 17, and so final maps will need to be in place within the next few months. 

On February 4, 2022, the North Carolina Supreme Court declared the legislative maps violate the state constitution, writing, “The North Carolina General Assembly, in turn, has the duty to reapportion North Carolina's congressional and state legislative districts; however, exercise of this power is subject to limitations imposed by other constitutional provisions, including the Declaration of Rights.” The General Assembly is required to submit redrawn maps by February 18, 2022.