4th Circuit Panel Strikes Down North Carolina’s Gerrymandered Congressional Districts

4th Circuit Court of Appeals building, Richmond, Virginia.

With its base shrinking due to (i) the dying off of aging white voters, (ii) the growing minority population, and (iii) the toxicity with which the GOP is viewed by growing numbers of younger voters, the Republican Party has  relied on gerrymandered districts dating from eight years ago to cling to control of many state legislatures and the House of Representatives.  Here in Virginia, these districts have been struck down at the state level and several congressional districts have been ruled unconstitutional.  Now, for a second time all of the congressional districts in North Carolina have been ruled as unconstitutional and, depending on the ultimate outcome, could change voting districts for the 2018 midterm elections and help shift control of the House to Democrats.  The Washington Post looks at the unanimous ruling handed down by a three judge panel of the 4th Circuit Court of Appeals (the opinion can be viewed here).  Here are excerpts:

A panel of three federal judges held Monday that North Carolina’s congressional districts were unconstitutionally gerrymandered to favor Republicans over Democrats and said it may require new districts before the November elections, possibly affecting control of the House.

The judges acknowledged that primary elections have already produced candidates for the 2018 elections but said they were reluctant to let voting take place in congressional districts that courts twice have found violate constitutional standards.

North Carolina legislators are likely to ask the Supreme Court to step in. The court traditionally does not approve of judicial actions that can affect an election so close to the day voters go to the polls.

But the Supreme Court has just eight members since Justice Anthony M. Kennedy’s retirement last month; a tie vote would leave the lower court’s decision in place.

The North Carolina case is a long-running saga, with a federal court in 2016 striking down the legislature’s 2011 map as a racial gerrymander. The legislature then passed a plan that left essentially the same districts in place but said lawmakers were motivated by politics, not race.

The Supreme Court told the three-judge panel to take another look at the North Carolina case in light of the high court’s June decision in a Wisconsin partisan gerrymandering case, in which the justices said those who brought that case did not have legal standing.

But Judge James A. Wynn Jr. of the U.S. Court of Appeals for the 4th Circuit, writing Monday for a special three-judge district court panel, said plaintiffs did have standing under the decision in Wisconsin’s Gill v. Whitford, which he said reinforced the judges’ earlier views that the congressional districts were drawn with improper partisan goals.

He proposed several unusual ideas: appointing a special master to draw new districts, holding general elections without party primaries or even turning the November elections into a primary and holding the general election sometime before the new Congress convenes in January. . . . . Wynn and his fellow judges called for immediate briefing from the parties about which remedy to pursue. Wynn said it should be clear that such partisan gerrymandering is unconstitutional.

“A common thread runs through the restrictions on state election regulations imposed by Article I, the First Amendment, and the Equal Protection Clause: the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others,” he wrote.

Richard Hasen, an election law expert at the University of California at Irvine, said the case has national implications.

“If the lower court orders new districts for 2018, and the Supreme Court deadlocks 4-4 on an emergency request to overturn that order, we could have new districts for 2018 only, and that could help Democrats retake control of the U.S. House,” he wrote on his blog.

The combined cases are Common Cause v. Rucho and League of Women Voters of North Carolina v. Rucho.