Superior Court judges Nathanial Poovey, Graham Shirley and Dawn Layton hear arguments over new voting districts in North Carolina on Dec. 3, 2021. Jordan Wilkie / Wmforo

North Carolina’s new legislative maps may be gerrymandered, but there’s nothing the state courts can do about it, according to a three-judge panel’s ruling on Friday afternoon.

The decision upholding the districts paves the way for candidate filing to open Monday at noon, the first major step in carrying off the elections under the new maps.

As drawn, the districts give Republicans likely wins in 10 or 11 of the state’s 14 congressional seats and continue GOP advantage for a majority, and possible super-majority, of seats in the state legislature. 

Unless a higher court intervenes, county boards of elections will start sending out by-mail ballots on Jan. 14, and the primaries will continue on March 8 as planned.

The order by the three-judge panel, which included Republican judge Graham Shirley of Wake County, Republican judge Nathaniel Poovey of Catawba County and Democratic judge Dawn Layton of Anson, Richmond and Scotland counties, said the judiciary lacks the jurisdiction to consider the matter because it is a political question.

 “The State Constitution delegates to the General Assembly the power to create congressional districts,” the order read. “Because a Constitution cannot be in violation of itself, a delegation of a political task to a political branch of government implies a delegation of political discretion.” 

Redistricting is one of the unique matters under North Carolina law that is assigned to a panel of Superior Court judges assigned by the state Supreme Court chief justice.

A question of partisan influence

When he announced the decision, Shirley said the ruling cannot be understood to condone partisan gerrymandering, but the judges had a reasonable doubt that gerrymandering is disallowed by the state Constitution and therefore the judges could not block the maps from going into effect. 

“It is clear to us that the framers of our state Constitution left the decision on districting or redistricting to a political party,” Shirley said. 

Though the framers’ move “results in an ill that has affected this country and state since colonial days,” according to Shirley, it is not clear the state Constitution blocks political parties from drawing maps favorable to their own interests. Through rewriting or amending the state Constitution, North Carolinians have had opportunities to prevent partisan gerrymandering and have not done so, he said. 

Defense counsel Phil Strach, a private attorney who represented Republican legislative leadership, said partisan gerrymandering is acceptable under the state Constitution. 

Even if partisan considerations are not permitted, Strach argued the lawmakers drew maps without political data. The way Republican voters are spread out across the state, it is “not surprising at all that you would get a Republican majority map,” he said.

Plaintiffs countered with statements and reports from academic experts that said the Republican legislature could not have come up with these maps without partisan considerations.

During oral arguments, Shirley regularly interjected to ask questions and repeatedly asked whether lawmakers could, under the state Constitution, make partisan considerations when drawing political maps. 

Both the court filings and oral arguments relied heavily on a North Carolina Supreme Court case from 2002, Stephenson v. Bartlett, that said in part, “the General Assembly may consider partisan advantage and incumbency protection in the application of its discretionary redistricting decisions.”

Plaintiffs said Stephenson also put limits on partisan advantage, in that it could not violate other parts of the state Constitution. Shirley asked questions trying to find the line between allowable partisan considerations and what plaintiffs see as unconstitutional partisan gerrymandering. 

He did not appear satisfied by the answers.

“Seems like we're going back to the Supreme Court's old pornography days,” he said. “We can't define it, but we know it when we see it.”

That's not good enough, he said.

The court’s ruling also drew on an earlier case, Common Cause v. Lewis, to require evidence of intent by the map creators in order to show extreme partisan gerrymandering, which the court has said goes beyond what can be allowed.

“Plaintiffs have not claimed intent,” the order said. “In fact, the evidence presented shows that the General Assembly did not use any partisan data in the creation of these congressional and state legislative districts, suggesting a lack of intent.”

Without clearly identifying a standard for extreme partisan gerrymandering, plaintiffs argued that the maps drawn by the Republican-controlled legislature should be considered unconstitutional because they lock in single-party control over the state legislature and U.S. congressional seats no matter what the voters do.

The three-judge panel also ruled that the plaintiffs lacked standing because the named parties did not live in the districts the suit alleges are wrongfully drawn. 

Move to appeal

The court’s decision rejected a preliminary injunction to block the maps from being put into effect for the March 2022 primaries. Had the plaintiffs prevailed, the legislature would have had to redraw the maps and the primaries would have been pushed back at least to May.

Both groups of plaintiffs, the North Carolina League of Conservation Voters and the Democratic Party-backed National Redistricting Foundation, filed notices of appeal to the North Carolina Court of Appeals late Friday.

“The three-judge court unanimously recognized that extreme partisan gerrymandering has harmed North Carolina’s voters for too long and should never be condoned, but expressed what it called a ‘reasonable doubt' about whether the General Assembly’s new maps violate our state Constitution,” according to a statement from the North Carolina League of Conservation voters.

The National Redistricting Foundation issued a statement calling the decision “disappointing, and wrongly decided.”

Speaking in a statement for the legislative defendants, Republican House Speaker Tim Moore said they are very pleased with the ruling.

“It is good news for North Carolina, and now it is time to move forward so that the election process can begin and the people of North Carolina can make their voices heard,” Moore said. “Today's ruling was a huge win for North Carolina voters.”

The decision was the second court victory this week for North Carolina Republicans facing gerrymandering lawsuits.

On Tuesday, Shirley denied a motion for a preliminary injunction in a different case alleging the process the legislature used to draw the maps was unconstitutional.

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Jordan Wilkie is a former Report for America corps member and former reporter at Wmforo. To reach the newsroom, email us at [email protected].