GOP lawmakers expected to have a freer hand with redistricting this year, experts say

Opponents of Republican-drawn political maps will likely have a much harder time challenging them as partisan gerrymanders going forward, after the N.C. Supreme Court decided to rehear an important redistricting case that GOP lawmakers lost last year.

Political and legal observers on both sides of the aisle expected that GOP lawmakers drawing new district lines this summer would face more favorable conditions if challenged in court, after Republicans swept statewide judicial races last fall, replacing a 4-3 Democratic majority on the Supreme Court with a 5-2 Republican one.

The Republican majority’s decision to rehear the gerrymandering case, which was already ruled upon by the court in December, when it had an outgoing Democratic majority, indicates that the court could issue a dramatically different ruling on partisan gerrymandering — which the court had previously found to be unconstitutional.

“It’s not clear that they needed to take that extreme, extraordinary step, in order for redistricting to move forward in a way that benefits Republicans,” said Asher Hildebrand, an associate professor at Duke University’s Sanford School of Public Policy. “It was likely going to happen already.”

Hildebrand, a former chief of staff to retired Democratic U.S. Rep. David Price, said the scope of a new ruling from the Supreme Court in the gerrymandering case is hard to predict, but that the direction of the ruling “seems pretty clear.”

Liberal opponents of the maps drawn by Republicans in 2021 and 2022 challenged them on the grounds that they had been excessively gerrymandered along partisan lines to the point that they violated the state constitution. Attorneys for GOP lawmakers said that the power to draw maps rested with the legislature, and that state courts would overstep their bounds if they threw the maps out.

“For the foreseeable future, the court’s going to be a Republican court, and for the foreseeable future, it will not be a favorable environment for partisan gerrymandering claims,” Hildebrand said.

What court’s new ruling could look like

Andrew Taylor, a political science professor at N.C. State University, agreed that claims of illegal partisan gerrymandering would likely not succeed in the near future, and that the court seemed poised to shift its stance on whether maps excessively gerrymandered along partisan lines are unconstitutional.

He said it wasn’t surprising that the court’s new majority would want to revisit the case.

During a trial over GOP maps in January 2022, Taylor testified in support of Republican lawmakers that North Carolina’s constitution, unlike those of some states, does not forbid partisan gerrymandering, and that state lawmakers have more discretion over how district lines are redrawn than their counterparts in other states.

Taylor said the Republican justices had made clear their skepticism that the constitution doesn’t allow partisan gerrymandering, and that that was one of the main reasons why they likely agreed to rehear the case.

“It’s very hard for them to see in the state constitution, anything that would essentially deem what most people have called partisan, or extreme partisan gerrymandering, unconstitutional,” Taylor said.

Taylor said it was difficult to predict what a new ruling from Republican justices might look like, or even if all five of them would sign on to the same opinion, but he laid out two plausible outcomes.

The first could be a ruling in which the court states that it has nothing to say about the constitutionality of partisan gerrymandering and points to the fact that redistricting is “exclusively a state legislative matter.”

Another ruling could be a more assertive one in which the Republican justices challenge the previous Democratic majority’s finding that partisan gerrymandering violated provisions of the constitution, Taylor said.

Cooper, top GOP leader respond

Opponents who challenged the GOP maps in court slammed the Supreme Court’s decision to rehear the gerrymandering case.

Democratic Gov. Roy Cooper commented on the decision Monday, saying in a statement that concerns that the new Republican-majority court “would give in to all the demands of the Republican legislature regardless of the constitution, precedent or judicial independence” were justified.

“For this Court to reopen rulings just weeks after they were decided is unprecedented and appalling and indicates that these justices reject the idea of an independent judiciary and swear allegiance to the whims of the Republican legislative leadership,” Cooper said.

Dissenting from the court’s decision to rehear the case, Justice Anita Earls, a Democrat, wrote that rehearing the case was a “radical break with 205 years of history.”

Asked on Monday if he agreed with what Earls said, GOP Senate leader Phil Berger said he believed the court’s Democratic majority deciding to rule on the case after voters had elected Republicans into the majority in November, was the real break with history.

“What we had before was a lame-duck court making a decision that was on an expedited schedule, in a clear attempt to inject politics into the court’s decisions,” Berger said.

What happens next with redistricting

State lawmakers’ next steps on their own districts may remain unclear.

But they will draw a new congressional map this year, since the map used for last year’s election had been drawn and put into place by a group of outside experts hired by the court.

State law requires that maps drawn by a court be used for only one election, which means that a new map has to be used for the 2024 congressional elections.

The map used in November’s elections led to each party winning seven of the state’s 14 U.S. House districts. The map previously passed by GOP lawmakers, which was struck down by the state Supreme Court last year, would’ve almost certainly led to a larger Republican advantage, likely a 10-4 or 11-3 split.

Lawmakers may draw a similar map later this year when they begin the redistricting process.

Another factor is Moore v. Harper, the nationally-watched case GOP lawmakers took to the U.S. Supreme Court, in which they argued that state courts shouldn’t be allowed to strike down federal election rules passed by state legislators, such as U.S. House district lines, because that authority lies only with state legislatures.

A ruling in that case is expected a few months from now, and GOP leaders have indicated they’ll wait until after the case has been decided before they proceed with redistricting.

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