The newest Republican defense of bad NC maps might be the most absurd
Does the North Carolina Constitution bestow any guarantee of fairness in the redistricting process?
It seems Republicans think it may not. At least that’s the impression left by the laughable legal argument they attempted this week.
On Wednesday, as the North Carolina Supreme Court heard oral arguments in the ongoing redistricting case, there was some disagreement about whether the state constitution actually prohibits partisan gerrymandering.
To be clear, there’s little question North Carolina’s maps were created to systematically give Republicans a gross advantage in elections. A panel of three Superior Court judges conceded as much in their ruling last month, saying North Carolina’s new congressional maps are “a partisan outlier intentionally and carefully designed to maximize Republican advantage,” leading to results that are “incompatible with democratic principles.”
The real question is whether that violates North Carolinians’ constitutional rights — and whether the courts can do anything about it.
In the view of Republican lawmakers, there is no way to define “extreme” or “impermissible” partisan gerrymandering, so the court doesn’t have the authority or the ability to make that determination.
“If there’s a line between what’s permissible or impermissible, and something is therefore extreme or not extreme, I don’t believe we can even get to the question you’re asking unless the court can provide that line and then decide whether the maps that were passed actually cross that line,” Phil Strach, an attorney for the Republican lawmakers, said. “We don’t think that’s been done here.”
But if we can’t rely on the courts to uphold democracy, then who else is left to defend it?
North Carolina is not the only state that has had to weigh such a question, and it won’t be the last, especially since the U.S. Supreme Court deferred questions of partisan gerrymandering to individual states back in 2019. But unlike Pennsylvania, where the state Supreme Court struck down maps on the basis of unconstitutional partisan gerrymandering in 2018, there is apparently nothing in North Carolina’s constitution stipulating that the state’s elections must be fair. North Carolina’s constitution says that “all elections shall be free,” while Pennsylvania’s free elections clause includes the words “free and equal.”
“We have free, we don’t have fair,” Chief Justice Paul Newby, a Republican, said to one of the attorneys representing the plaintiffs Wednesday.
That’s absurd. The very idea of free elections implies at least some semblance of fairness. If the outcome of an election is more or less decided before even a single vote is cast, that election can hardly be considered free. The court, and North Carolinians, shouldn’t accept unbalanced maps — maps that threaten the very idea of democracy — simply because the constitution does not explicitly contain the word “fair.”
Gerrymandering, regardless of which party participates in it, may not explicitly deprive North Carolinians of their right to vote. Unlike other measures that Republicans have enacted, such as voter ID laws, gerrymandering technically doesn’t prevent anyone from physically going to the polls and casting a ballot. But unfair maps deprive millions of North Carolinians — especially Black North Carolinians — of their voting voice. When the maps are designed to entrench the power of one political party over another, regardless of public opinion, people lose the opportunity to decide who represents them, rendering the principle of “one person, one vote” meaningless.
But that doesn’t seem to bother North Carolina Republicans, who apparently would rather test the bounds of what is and isn’t legally permissible than simply give voters the basic power democracy affords them. The court should strike the GOP maps down and affirm that North Carolinians don’t merely have the right to cast a vote — they have the right to cast a vote that actually counts.
