Harper v. Hall, the well-publicized case concerning the issue of redistricting and alleged gerrymandering following the 2020 census, was recently decided by the NC Supreme Court on a 4-3 vote, splitting along party lines. Since the decision raises broad questions about constitutional interpretation and creates substantial uncertainty impacting North Carolina’s business climate, we thought you would appreciate a “just the facts” dive into the law developed by Harper v. Hall.

The Plaintiffs’ principal argument in the case was that the maps exemplified “extreme partisan gerrymandering” and that such gerrymandering violated four provisions of the North Carolina Constitution. Each of those provisions is contained in the Constitution’s opening Declaration of Rights. Given the attention this case has received in the media, and the passionate discourse it has ignited, I thought it would be most useful to merely examine the provisions in play and the Court’s conclusions regarding each one.

Article I, Section 10. Free Elections

Article I, Section 10 states simply that “[a]ll elections shall be free.” Plaintiffs claimed that the concentration of registered Democrat voters in certain districts and the distribution of registered Democrat voters in numerous other districts diluted Democrats’ collective influence to a degree that constituted denial of a free election.

The Court’s Conclusions: Asserting that the understanding of what is required to maintain free elections has evolved over time, the Court agreed with plaintiffs. It held that elections are not free if voters are denied “equal voting power.” Partisan gerrymandering, effected by the controlling party to retain control, prevents elections “from reflecting the will of the people impartially and by diminishing or diluting voting power on the basis of partisan affiliation.”

Article I, Section 19. Equal Protection

The Equal Protection clause in the North Carolina Constitution provides in pertinent part that “No person shall be denied the equal protection of the laws.” Plaintiffs claimed that partisan gerrymandering violates the fundamental right of voters to vote on equal terms and the fundamental right to substantially equal voting power.

The Court’s Conclusions: In sustaining the plaintiffs’ claims, the NC Supreme Court relied on an earlier case which it interpreted to require that district maps provide an opportunity for voters to aggregate their votes with likeminded voters to elect a governing majority of elected officials reflecting views of the likeminded group. Denial of such an opportunity diminished and diluted the substantially equal voting power of those voters.

Redistricting by drawing distinctions based on partisanship diminished voters’ “representational influence.” Voters only have equal “representational influence” if results fairly reflect the will of the people not only district by district, but in the aggregate, and on equal terms. Deprived of equal voting power and representational influence, plaintiffs were denied the equal protection of an opportunity to elect a governing majority. In other words, voters represented by the plaintiffs would have fewer legislators who are “responsive” to their concerns.

Article I, Sections 14/12. Freedom of Speech/Freedom of Assembly

The final two constitutional claims put forward by Plaintiffs were that gerrymandered districts violate the NC Constitution’s protections of the rights of free speech and freedom of assembly, and the two claims were essentially interchangeable. Article I, Section 14 provides that “[f]reedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” Section 12 states that “[t]he people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances.”

Plaintiffs claimed that partisan gerrymandering constituted a violation of their rights of free speech and free assembly because it imposed an impermissible burden on partisan speech and on association with a disfavored partisan group.

The Court’s Conclusions: The Court agreed with the Plaintiffs, holding that partisan gerrymandering penalizes voters by diluting the influence of those voters based on their partisan affiliation and voting history. By doing so, the gerrymander places a burden on the right to equal voting power based on political views. Gerrymandering bestows disfavored status on those voters based on their previously expressed views, undermining free speech and association, and “distorts the expression of the people’s will and the channeling of the political power derived from them to their representatives in government based on viewpoint.”

Dissent

In a lengthy dissent, Chief Justice Newby calls the majority to task first and foremost for its declaration that the understanding of the Declaration of Rights has “evolved over time.” If the meaning of the Constitution is not fixed by its terms, said Justice Newby, the Court can simply amend it to align with its desired and predetermined outcome. Amending the Constitution is, of course, not the prerogative of the Court.

Additionally, the dissent points out that actions by the legislative branch should be accorded a deferential standard of review, for a task constitutionally reserved to the General Assembly, and one for which there are no explicit or manageable legal standards, as is the case with redistricting. He then proceeds to disassemble each of the majority’s analyses under the four constitutional provisions. The dissent ultimately concludes that the majority opinion wrests from the General Assembly its constitutionally mandated duty and moves into policymaking, inconsistent with the Court’s constitutional role.

The Standard

In an opinion notable for its hyperbolic language and length, it is challenging to discern the standard by which a future General Assembly should be guided when redrawing district maps. The Court in the case at hand invited both the General Assembly and the plaintiffs to submit new maps for the Court’s consideration. The Court submitted the maps to a panel of special masters consisting of two former NC Supreme Court justices and the former President of the Consolidated University of North Carolina. New districts have now been approved by the Court following that process, but the standard remains indistinct if not elusive.

Based on the language of the opinion, the standard observed may be expressed as follows: A redistricting map must be drawn such that the districts accord each voter “substantially equal voting power.” In doing so, the General Assembly may not diminish or dilute voting power on a partisan basis, nor penalize voters by apportioning district lines in a way that dilutes political influence based on prior political expression (i.e., party registration).

Where Are We Now?

Many questions remain after this decision. How is substantially equal or diluted voting power determined for unaffiliated voters? Their proportion of the electorate seems to grow as the political climate continues to polarize. Do party affiliations oblige voters to vote only for their party’s candidate, or do issues no longer matter?

Unfortunately, the NC Supreme Court has left those constitutionally tasked with implementation of redistricting in something of a quandary. It struggled to articulate a standard to guide the General Assembly for drawing districts for seats in the NC Senate, the NC House of Representatives, and the U.S. Congress. “Substantially equal voting power” remains ill-defined. This is problematic for the business community because it means we are destined to revisit the arguments on both sides many times in the coming years.

In lieu of readily discernible standards for lawful redistricting, the opinion has produced at least one predictable outcome: The NC Supreme Court has effectively become responsible for redistricting, more litigation will follow, and lawyers specializing in redistricting cases will prosper.

Sincerely,

Ray Starling
President
NC Chamber Legal Institute