North Carolina’s Rucho Redux

More states will consider partisan gerrymandering this year.

Back in 2019, the Supreme Court shut the courthouse door to challenges to partisan gerrymandering under the U.S. Constitution in Rucho v. Common Cause. The Court ruled that the U.S. Constitution doesn’t provide clear legal standards for courts to apply in gerrymandering cases, but state courts could fill the legal void. “Provisions in state statutes and state constitutions,” Chief Justice Roberts wrote, “can provide standards and guidance for state courts to apply.”

Until recently, North Carolina was one of a growing list of states — including Alaska, Florida, Maryland, New York, Ohio, and Pennsylvania — that apply constitutional limits to partisan gerrymandering.

Last November, however, Republicans won two seats on the North Carolina Supreme Court, giving it a new conservative majority. In February, the court relied on a rarely used procedural rule to rehear the 2022 partisan gerrymandering case Harper v. Hall — and reversed its prior ruling on April 28.

The unusual decision to rehear and reverse Harper with a new court majority, just a year after it was settled, raises challenging questions about how judicial politics impact the rule of law — particularly at a moment when judicial elections are becoming increasingly politicized.

And with courts in Utah, New Mexico, and New Hampshire all expected to consider partisan gerrymandering claims in the coming months, we will also soon see whether Harper is an outlier or a harbinger of other state courts embracing a Rucho redux.

The North Carolina court concluded in Harper that there is no “truly judicially discoverable and manageable” way to evaluate partisan gerrymandering. Echoing Rucho, it defined the question before it as “how much partisan gerrymandering is too much” — and found fault with political science measures that aren’t definitive.

A key question, of course, is whether partisan gerrymandering can really be “nonjusticiable” when so many other state courts have devised ways to assess such claims. For example, the Alaska Supreme Court issued an opinion that courts can police partisan gerrymandering just one week before the North Carolina justices threw up their hands. As my Brennan Center colleague Yurij Rudensky explained in a recent piece analyzing the opinion for State Court Report, the Alaska decision “establishes unequivocally” that partisan gerrymandering “offends equal protection under the Alaska Constitution.”

The Alaska court took a very different analytical approach than the court in Harper, focusing on whether there was evidence of bad intent by the map-drawers based on the “totality of circumstances.” To establish a constitutional violation, as Rudensky notes, the court considered everything from documentation of secretive procedures by the redistricting board to expert evidence that the board’s use of meandering district boundaries ignored communities of interest. This isn’t simple, but it’s also exactly the kind of evidence courts consider all the time.

There’s much more to say, but I’ll finish by noting that North Carolina’s ruling could also have implications for Moore v. Harper, currently before the U.S. Supreme Court, which relates to a challenge to the North Carolina Supreme Court’s earlier partisan gerrymandering ruling. In Moore, the Supreme Court is considering an argument that the so-called “independent state legislature theory” gives state legislatures near-absolute power to regulate federal elections — and writes state courts out of the equation. Now that the North Carolina court has reversed itself, the Supreme Court has requested further briefing, due Thursday, about whether it can continue to hear the case.

IMAGE: NickS/Getty

There are many more highlights from the past two weeks below — including more cases out of North Carolina.

North Carolina Upholds Voter ID and Felony Disenfranchisement Laws

The same day that the North Carolina Supreme Court issued its partisan gerrymandering decision, it also issued opinions upholding a voter ID law (reversing a prior ruling) and a felony disenfranchisement law (reversing a lower court ruling).

The Brennan Center’s Robyn Sanders analyzes the Voter ID ruling, including the adoption of “a significant change to the standard of proof used to discern discriminatory intent under the state constitution.” READ MORE

The Brennan Center’s Eliza Sweren-Becker contextualizes the felony disenfranchisement ruling, arguing that nationally, “advocates have found more success dismantling such policies in the court of public opinion than in actual court.” READ MORE

How State Courts Should Evaluate Single-Subject Rules

Forty-three states have constitutional provisions called “single-subject rules,” which are supposed to prevent legislators from combining disparate provisions into a single package (often called “logrolling”). Kevin Frazier, who will soon be joining the Benjamin L. Crump College of Law at St. Thomas University as an assistant professor, calls on state courts to take a new approach, arguing that “the purpose of single-subject rules has been frustrated by state supreme courts struggling with how to interpret what constitutes one ‘subject.’” READ MORE

Can a Constitutional Rewrite Purge a Provision’s Discriminatory Origins?

In 1985, the U.S. Supreme Court struck down Alabama’s felony disenfranchisement scheme because the state constitutional provision was motivated by racial animus. Since then, federal courts of appeal have upheld felony disenfranchisement provisions in Florida and Mississippi, ruling that reenactments in the 1960s had removed the “discriminatory taint” that the provisions had when adopted. Professor Quinn Yeargain of Widener University Commonwealth Law School analyzes these rulings and whether such laws “can ever truly be divorced from their racist origins.” READ MORE

Washington Supreme Court to Hear Challenge to State Voting Rights Act

On May 11, the Washington Supreme Court will hear oral arguments in a case claiming that the Washington Voting Rights Act violates the federal Equal Protection Clause and the state Privileges and Immunities Clause. The Brennan Center’s Yurij Rudensky and Sonali Seth preview the case, including potential consequences for voters in other states with similar voting rights acts. READ MORE

What Else We’re Reading (and Watching)

• Anthony Sanders from the Institute for Justice just released a new book, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters. (He previewed some of his arguments last year in State Court Report.)

• On June 2, the State Democracy Research Initiative at the University of Wisconsin is hosting a panel called Public Law in the States: The Work of State Supreme Courts, featuring state supreme court justices from across the country. Register here.

Notable Cases

Commonwealth v. Hallinan, Massachusetts Supreme Judicial Court
Ruled that the approximately 27,000 defendants who were convicted in drunk driving cases based on evidence from breathalyzer tests that were later found to be dysfunctional are entitled to a conclusive presumption of egregious government misconduct without needing to establish egregious government misconduct in their individual cases when seeking to withdraw guilty pleas or receive a new trial. Read more in WBUR.

Zephyr v. State, Montana First Judicial District Court, Lewis and Clark County
Denied a motion for a temporary restraining order to allow Rep. Zooey Zephyr to speak on the Montana House floor after she was censured, ruling that she was unlikely to succeed on the merits based on the state constitution’s separation of powers clause. Representative Zephyr alleges that the House’s actions violate the state constitution’s guarantees of freedom of speech and equal protection. Read more in the Daily Montanan.

Saunders v. Randolph, Chancery Court of Hinds County, Mississippi
Lawsuit filed challenging House Bill 1020, which requires the chief justice of the Mississippi Supreme Court to appoint four new judges to hear cases in Jackson, alleging that it violates a provision of the state constitution that requires state circuit judges to be elected. Read more in the Mississippi Free Press.