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Courts Continue to Pass the Buck on Gerrymandering Cases

U.S. map of political demographics
By Eric Harvey, J.D. | Last updated on

The North Carolina Supreme Court recently laid down its ruling in a critical case that could seriously affect future federal elections. The case centers around the "independent state legislature theory," a radical theory claiming that, under the U.S. Constitution, state legislatures may determine how federal elections take place without oversight from state constitutions or state courts.

The case raises questions about the legality of drawing voting maps, which are designed to help a certain party win. State courts throughout our country have historically been hesitant to weigh in on this issue, so this case could be an important one for laying the groundwork for future decisions in other states.

Let's see what North Carolina had to say.

Background of the Case

The case before the N.C. Supreme Court is called Harper v. Hall. Formerly known as Harper v. Moore,it's actually a review of a prior case that this same court had taken up once before. In fact, that case, along with a similar case from Maryland, made it all the way up to the U.S. Supreme Court in 2019, in a case called Rucho v. Common Cause.

In September of 2019, a group of North Carolinians filed a lawsuit against the state board of elections and a handful of lawmakers in the state. The plaintiffs challenged the state's 2016 congressional redistricting plan, claiming that it was unconstitutional under the state constitution. 

Redistricting plans are used to make elections less competitive, and many states have taken issue with the practice. The plaintiffs claimed that the 2016 redistricting plan was a violation of the Free Elections Clause and Equal Protection Clause of the North Carolina Constitution. They also argued that the redistricting plan violated their constitution's Freedom of Speech and Assembly Clauses. 

The case had a lot of back and forth at courts of different jurisdictions. Following the defendants' petition for a change of venue, the casewas first removed to federal court, but then remanded back to a state court. That state court granted the plaintiff's injunction, in which they had asked that the court prevent the legislators from engaging in redistricting and partisan gerrymandering in the upcoming 2020 elections. The defendants challenged the ruling.

Over the years, the case made its way to the U.S. Supreme Court, where oral arguments were heard in December of 2022. But SCOTUS has for a while been reluctant to meddle in what the Justices have referred to as "political questions." They have indicated that they are not constitutionally authorized to review cases that raise legal questions like those at issue in the practice of partisan gerrymandering. 

Just this January, the defendants in Harper filed a motion for the North Carolina Supreme Court to review the case once again. That motion was granted. In March, Harper v. Hall went back to the state supreme court yet. But the Court echoed the feelings of the conservative Justices on SCOTUS. In the decision handed down late last month, Republican Chief Justice Paul Newby wrote for the majority that there is "no judicially manageable standard by which to adjudicate partisan gerrymandering claims." But of course, this is legalese. What does this mean?

To put it another way, the N.C. Supreme Court has indicated that they are not authorized under the state to answer the kinds of political questions raised by redistricting and partisan gerrymandering. The majority emphasized that state courts are "are not intended to meddle in policy matters."

SCOTUS' Take on Gerrymandering

In 2019, in a case called Rucho v. Common Cause,the conservative U.S. Supreme Court decided that adjudication of issues related to partisan gerrymandering is "beyond the reach of the federal courts." Recall, this is the case that address the issues of ​Harper v. Hall ​back in the day. SCOTUS meant to say that it was not constitutionally authorized to review the political questions raised by challenges to redistricting and partisan gerrymandering.

By handing down such a ruling, SCOTUS indicated that only state courts should have the authority to review cases related to such matters. At the same time, the Supreme Court claimed that redistricting and partisan gerrymandering raise only political questions—and not legal ones over which courts have jurisdiction to review. But what exactly are redistricting and partisan gerrymandering anyway?

Redistricting is the process of drawing electoral districting boundaries, and it tends to take place every ten years after censuses have been completed. At the completion of any given census, redistricting is meant to account for shifts in populations. Partisan gerrymandering, on the other hand, involves redistricting such that there is an increased representation of one political party in any given district. In political gerrymandering, by design, such an increased representation of one political party places any other political party in the district at a disadvantage. This is meant to dramatically increase the likelihood that the overrepresented party wins elections.

Speaking for the majority in Rucho, Chief Justice John Roberts wrote that, "Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions." In other words, again, SCOTUS claimed that it lacks constitutional authorization to weigh in on a political matter. It thus refrained from issuing a decisive ruling on the so-called political questions that were also raised by the challenge to redistricting and partisan gerrymandering. All this despite the fact that Roberts admitted in his opinion that the result of gerrymandering are elections that "seem unjust."

Returning to the N.C. Supreme Court Case

The Harper case, much like that of Rucho,has raised questions about the role of courts in federal elections. The N.C. Supreme Court, like SCOTUS, believes it should not interfere in political processes. But in the Harper dissent, Justice Anita Earls (a Democrat) wrote that the earlier ruling in the case (now vacated) supported greater involvement of courts in federal elections. She wrote that "a Democratic-controlled Court carried out its sworn duty to uphold the state constitution's guarantee of free elections, fair to all voters of both parties."

So, what are the possible political consequences when courts feel they must abstain from functioning as oversight bodies in elections that many are worried are less fair and unjust because of redistricting and partisan gerrymandering?

A professor of electoral law at Loyola Law School, Justin Levitt, has provided an answer. "We are in Mad Max territory now; there are no rules," he says. As we approach the next redistricting deadlines, he says that legislators in control of state governments will see the rulings by the U.S. Supreme Court and the N.C. Supreme Court as an opportunity to continue drawing lines in their favor. In other words, state legislators will be emboldened to continue engaging in partisan gerrymandering practices.


Both the Republican Party and the Democratic Party have been engaging in redistricting strategies and practices for as long as popular memory can recall, and the practice of partisan gerrymandering has been receiving more and more attention over the years. Now more than ever, with these two cases, the core democratic question of what makes elections fair and free is under review. If courts choose not to intervene—as was the case with the Supreme Court in North Carolina and with SCOTUS—the problem of partisan gerrymandering may continue to run unchecked.

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