Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky and the author of “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” The opinions expressed in this commentary are the author’s; view more opinion articles on CNN.
Beyond halting a brazen power grab, this week’s decision from a North Carolina court is particularly significant for accomplishing what the US Supreme Court refused to do earlier this year: stop egregious partisan gerrymandering.
For the second time in three years, a court has found that North Carolina’s Republican-controlled legislature engaged in unlawful discrimination in its voting laws. Two years ago, a federal appeals court wrote that the state’s strict voter ID law “target(ed) African Americans with almost surgical precision.” A North Carolina state court just reiterated that phrase, holding that the state legislature drew district maps that were an unlawful partisan gerrymander under the state constitution when it crafted district lines “with surgical precision” to keep Republicans in power.
This latest ruling is especially striking in light of a US Supreme Court decision in June that closed the federal courthouse doors to claims of partisan gerrymandering. In that decision, the high court said that cases challenging unfair district maps were too political for judicial resolution under the United States Constitution. But Chief Justice John Roberts, writing for the 5-4 majority, noted that state courts could potentially fill the void. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.
A unanimous three-judge North Carolina state trial court, comprised of two Democrats and one Republican, did exactly that, invoking the state constitution’s protection for “free” elections to strike down a map that kept Republicans in control of the state legislature even after they fell out of favor with the majority of the state’s voters.
“It is not the will of the people that is fairly ascertained through extreme partisan gerrymandering,” the court wrote. “Rather, it is the will of the map drawers that prevails.”
In 2018, for instance, Democrats won more than 50% of the statewide vote for House elections but Republicans won 54% of the seats; the results were essentially the same in the state Senate, with Democrats winning a majority statewide but Republicans earning 58% of the seats. Only an egregious partisan gerrymander could explain these results.
Five words in the North Carolina Constitution did all of the work: “All elections shall be free.” The court noted that this simple but powerful sentence makes the state constitution “more detailed and specific than the federal Constitution,” which does not explicitly include this same level of protection.
The court determined that the “free elections” clause means “that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” Partisan gerrymandering violates this “cornerstone of our democratic form of government.” The court also construed the state constitution’s equal protection and freedom of speech and assembly clauses to provide more protection than the similar guarantees within the US Constitution.
The ruling is significant not only in North Carolina but throughout the country. Unlike the US Constitution, almost every state constitution has a provision that explicitly grants the right to vote to the state’s citizens. (Only Arizona’s constitution does not include this clause, but its courts have construed its constitution to confer voting rights anyway.) About half of the state constitutions include a statement that elections shall be “free,” “free and equal,” or “free and open.” The North Carolina court’s ruling therefore provides a model for other state courts to construe their state constitutions broadly to protect the right to vote and stop egregious partisan gerrymanders.
The North Carolina decision follows a 2018 Pennsylvania Supreme Court decision that also struck down a partisan gerrymander under the state’s constitution. That court similarly found that, contrary to the US Constitution, Pennsylvania’s constitutional mandate that elections be “free and equal” means that “all voters have an equal opportunity to translate their votes into representation.” An unfair map violates that ideal. The court ordered a new, unbiased congressional map for the 2018 election, which produced a much fairer result: Instead of a 13-5 Republican advantage, the congressional delegation split 9 to 9 after voters slightly favored Democrats statewide (one Democratic incumbent ran unopposed.)
The North Carolina map also should be a lot fairer for the 2020 election, especially as Republican leaders have indicated that they will not appeal this ruling, likely fearing a broad precedent from the Democratic-controlled state supreme court.
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Of course, these judicial decisions should not stop the efforts to create independent redistricting commissions, which voters in several states have embraced. No politicians – of either side – should have the power to determine the rules of their own re-election. But the state court decisions, invoking the broader protections of state constitutions, offer another tool to fight back against self-interested politicians who craft unfair election rules “with surgical precision” to keep themselves in power.
All is not lost, even after the poorly reasoned decision from the US Supreme Court that washed its hands of partisan gerrymandering claims. State courts, robustly construing their state constitutions, can still protect our fundamental right to a fair democracy.