Dr. Michael Bitzer Profile picture
Aug 27, 2018 87 tweets 29 min read Twitter logo Read on Twitter
So, there’s a 300 page opinion by a 3 judge panel regarding NC’s partisan gerrymandering. Guess I know what I’m doing after dinner tonight. #ncpol #ncga redistricting.lls.edu/files/NC%20cc%…
OK, so here we go…tweet storm forthcoming regarding the 300+ opinion that still holds NC partisan gerrymandering as illegal, and that this time, the plaintiff’s have met the Gill burden of having standing as being in a district that is in question:
With standing, the issue of the partisan gerrymandering by NC Republicans is in violation of the U.S. Constitution’s Article I, the 1st Amendment, and the Equal Protection Clause of the 14th Amendment:
Per the majority’s opinion, "Partisan gerrymanders, therefore, 'raise the specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace.’” #ncpol #ncga #ncredistricting #gerrymandering #partisangerrymandering
And, the court finds, is what the NC Republicans in the General Assembly did: #ncpol #ncga #redistricting #ncredistricting
Wow, this is constitutionally intriguing: "Put differently, the General Assembly’s Republican majority “decid[ed] which
ideas [w]ould prevail” in the State’s congressional elections. ...
In doing so, they deprived Democratic voters 'of their natural political strength' by
making it difficult for such voters to raise money, attract strong candidates, and motivate
fellow party members and independent voters to campaign and vote.” #ncpol #ncga #redistricting
Comprehensive overview of the lead-up and development of maps starting on page 8, but this is the common theme: "Representative Lewis
said that he “propose[d] that [the Committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because...
...[he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats.” #ncga #ncpol #ncredistricting
And the end results of the 2016’s maps: "In accordance with the objective of the Partisan Advantage criterion, GOP candidates prevailed in 10 of the 13 (76.92%) congressional districts established by the 2016 Plan. GOP candidates received 53.22 percent of the statewide vote. "
Following the procedural aspects leading to this opinion, notably #SCOTUS remand, the court finds "that Gill does not call into question our earlier conclusions that Plaintiffs have standing to assert First Amendment and Article I challenges to the 2016 Plan.” #ncpol #ncga
The 3-judge panel continues to hold that 12 of the 13 NC Congressional Districts are illegal because "the General Assembly’s predominant intent was to dilute the votes of voters who favored non-Republican candidates; …”
“...the General Assembly’s
manipulation of each of those district’s lines has had the effect of diluting such voters’ votes; and no legitimate state interest justifies that dilution.” #ncpol #ncga

In addition...
…"the 2016 Plan violates the First Amendment by unjustifiably imposing burdens on Plaintiffs based on their previous and ongoing political expression and affiliation. Finally, we again hold that the 2016 Plan…”
“… violates Article I by exceeding
the scope of the General Assembly’s delegated authority to enact congressional election
regulations and interfering with the right of “the People” to choose their Representatives.” #ncpol #ncga
Page 34 begins the jurisdictional questions, which seemed to be at the heart of the remand by #SCOTUS the last time. The court holds that the plaintiffs have standing and that the political question doctrine isn’t violated.
The court then goes through each of the 12 challenged districts and concludes that the plaintiffs have standing in each, describing some of the districts like this: "District 8 takes on a snake-like shape, running through all or part of seven counties
in south central NC."
And the 9th District, which begins in Mecklenburg County (home to Charlotte) and runs along the SC border: #ncpol #ncga #cltpol
And remember the Asheville appendage? The court notes that one as well: "District 11 encompasses almost all of the southwest corner of the State, w/ the sole exception being a bulbous protrusion of District 10 that takes in a portion of Buncombe County and the City of Asheville."
"Prior to 2011, District 11 included all of Buncombe County, Byrd testified, but the 2016 Plan, like the 2011 Plan, “sliced and diced” Buncombe... by “mov[ing] a core of the Democratic concentration out of the district, and put[ting] it in a district where it would be diluted.”
Some plaintiffs asserted they were injured by the plan ‘as a whole’ and not within a district. Those plaintiffs do NOT have standing, and thus the case continues with plaintiffs on a district-by-district standing basis (see page 62).
The court turns to the 1st Amendment claims: "In particular, individual Plaintiffs testified to decreased ability to mobilize their party’s base, persuade independent voters to participate, attract volunteers, raise money, and recruit candidates.” #ncpol #ncga #ncredistricting
“By placing a state party at an
enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions.” Gill, 138 S. Ct. at 1938 (Kagan, J., concurring). That is the case here” in the NC partisan redistricting gerrymandering, the court finds.
While acknowledging that the defendants also have Article I claims, the court moves into the issue of whether the courts can resolve and deal with partisan gerrymandering claims (the political question doctrine):
The court’s majority holds that "Accordingly, under controlling Supreme Court precedent, a challenge to an alleged partisan gerrymander presents a justiciable case or controversy.”

And adds immediately after this "For good reason."
The court holds that "On its most fundamental level, partisan gerrymandering violates ‘the core
principle of republican government . . . that the voters should choose their
representatives, not the other way around.’” #ncpol #ncga #ncredistricting #Gerrymandering
"Put differently, partisan gerrymandering represents “‘an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.’”

#ncga #ncpol #ncredistricting #Gerrymandering
The court finds that "partisan gerrymandering of congressional districts constitutes a structural violation because it insulates
Representatives from having to respond to the popular will…”
Using references to the Framers & Federalist Papers, the court holds "Partisan gerrymandering...amounts to a legislative effort “to give some voters a greater voice in choosing a Congressman than others,” id., contrary to the republican system put
in place by the Framers."
Two more reasons for striking down partisan gerrymandering: it "subverts the foundational constitutional
principle that the State govern 'impartially’” & burdening political rights.
Lots of Madisonian references about the will of the people being infringed:
And a few Scalia quotes thrown in, for good measure as well. But they end one section with this: "Partisan
gerrymandering is no different than legislative efforts to curtail other forms of election time speech …"
“...because in both cases “[p]oliticians have deep-seated incentives to bias
translation of votes into seats.” #ncpol #ncga #ncredistricting #Gerrymandering
Thus, "because partisan
gerrymandering encroaches on individuals’ right to engage in “election-time speech”—including the right to vote—allegations of partisan gerrymandering “must be carefully
and meticulously scrutinized” by the judiciary.” (Pg 88) #ncpol #ncga #ncredistricting
Footnote 19: "Accordingly, we decline Legislative Defendants’ request that we take the unprecedented step of dismissing a claim under the political question doctrine solely due to an alleged lack of judicially manageable standards for resolving the claim.”
The court’s majority really gets into some deep discussion of Federalist Papers and historical references to the constitutional adoption in finding the political bodies shouldn’t be allowed to perpetuate their own biases in electioneering & redistricting:
"the Elections Clause contemplates
election regulations based, at least in part, on political considerations in no way proves that it contemplates election regulations enacted for partisan advantage, particularly…"
“...when the Framers expressly sought to discourage the formation of political parties."
The court doesn’t merely dismiss the GOP Legislators’ claims that unelected courts shouldn’t get involved with this issue, they slap it pretty hard: "For here, politicians’ incentives conflict with voters’ interests,…”
“…leaving citizens without any political remedy for their constitutional harms.” #ncpol #ncga #ncredistricting #Gerrymandering
The court’s majority pretty much dismisses the GOP’s claims of exempting this kind of redistricting with this statement: "Accordingly, we decline Legislative Defendants’ invitation to create such a special exception.”

In other words: bless your hearts, but no.
Also, a lot of Justice Kennedy’s Vieth concurrence appears in this opinion:
Am only on page 109 (ugh), but this seems important: "“[a] determination that a gerrymander violates
the law must rest . . . on a conclusion that [political] classifications, though generally permissible, …."
“...were applied in an invidious manner or in a way unrelated to any legitimate
legislative objective.” This seems like the set-up for the judicial standard that is needed, in some way, to review and determine what is partisan gerrymandering (i.e., the great unknown).
Here we go: “we assume that a congressional district amounts to an unconstitutional partisan gerrymander only if the legislative body’s predominant purpose in drawing the district was to subordinate the interests of supporters of a disfavored party and …"
“...entrench a representative
from a favored party in power.”
Aaah: "Accordingly, under the standard on which we rely on to strike down those twelve districts, a state legislative body may engage in some degree of partisan gerrymandering, so long as it was not predominantly motivated by invidious partisan considerations.”

There ya are.
So, it looks like the court’s majority is using a principle in racial gerrymandering, “predominance,” as their lynchpin to judge partisan gerrymandering:
So, this is an interesting passage, in which I read the court basically saying “math matters” and “social science is A-OK.”
Math Matters, Part II: or, Just Cause We Are Judges Don’t Mean We Can’t Understand Statistics
I mean, pages 120-122 are pretty harsh towards defendants when it comes to using statistics in legal controversies.
"In sum, Plaintiffs’ reliance on academically derived, social science evidence to support their partisan gerrymandering claims does not render their claims judicially unmanageable.”

Well, guess I have a job for another day...
Now, the argument using Equal Protection Clause:

"a redistricting plan violates the EPC if it “serve[s] no purpose other than to favor one segment—whether racial, ethnic, religious, economic or political—that may occupy a position of strength…"
“.... . . or to disadvantage a politically weak segment.”
In order to do so, "the plaintiff must show that the redistricting body intended to apply partisan classifications 'in an invidious manner or in a way unrelated to any legitimate legislative objective.’” #ncpol #ncga #ncredistricting
"Under the Supreme Court’s definition of 'partisan gerrymandering' a plaintiff must show that the legislative mapdrawer segregated voters on the basis of partisanship for an invidious purpose—to 'subordinate adherents of one political party and entrench a rival party in power.’"
But, the court acknowledges that SCOTUS could require a higher standard, much like with racial gerrymandering, to prove the map drawer’s purpose:
The court’s majority seems to be developing a new way of developing the standard/burden a plaintiff must meet to claim impermissible partisan gerrymandering:
The court then takes a state-wide and district-by-district analysis; first, the state-wide intent and the court’s findings:
In reviewing the redistricting process with the GOP map drawer and then subjecting the maps to analysis, the court finds that "the 2016 Plan’s pro-Republican bias is not attributable to a legitimate redistricting objective,…”
“...but instead reflects an intentional effort to subordinate the interests of non-Republican voters.” #ncpol #ncga #ncredistricting #gerrymandering
The court’s majority then goes through a pretty detailed, and at times acknowledging the weakness, of some of the expert testimony and analyses, especially regarding the efficiency gap analysis. But in the end...
The court then turns to the argument that Democrats are urban-based, which the court finds "that North Carolina’s political geography does not explain the 2016 Plan’s discriminatory effects on supporters of non-Republican candidates.”
So, pretty much pages 145-205 can be boiled down to the court’s majority saying this:
NOW we get to the district-by-district analysis and yes my eyes are crossing themselves…
Pretty much going to summarize the court’s opinion this way: all but one district (Congressional District 5) are found to violate the Equal Protection Clause. Am going to skim each district analysis and point out any juicy tad-bits, but let’s just save 42 pages shall we
Typo alert: "Republican candidate, Rep. Ted Bud, received 56.1% of the vote in 2016 election)”

It’s Budd, not Bud. (Page 248, for anyone who cares)
So, in summary regarding the Equal Protection Clause violations of 12 of 13 congressional districts in NC:
Next, the 1st Amendment claims (and the last 40 pages of the majority opinion):
After a pretty exhaustive review of 1st Amendment free speech cases, the majority asks a series of questions related to partisan gerrymandering:

"How can the First Amendment
prohibit the government from disfavoring certain viewpoints,…"
yet allow a legislature to
enact a districting plan that disfavors supporters of a particular set of political beliefs?”

#ncpol #ncga #ncredistricting #Gerrymandering
"How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters and candidates?"
"How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights?"
"And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others?"
The Court’s answers to those ?s: "The 2016 Plan, in particular, implicates all four of these lines of precedent. The 2016 Plan discriminates against a particular viewpoint: voters who oppose the Republican platform and Republican candidates."
And then...
The court’s majority then derives a test for evaluating the 1st Amendment claims by the plaintiffs:
The majority finds that the partisan gerrymandering does have 1st Amendment claims to it, via their test:
Finally, the Article 1 claims against the NC redistricting on the grounds of partisan gerrymandering:

#ncpol #ncga #ncredistricting #Gerrymandering
So, we get to the court’s remedies, which pose some (shall we say) “interesting” ideas: one is doing away with primary elections, because the #ncga, under GOP leadership, did away with primaries for other state offices.
"To begin, the General Assembly has abolished primary elections for several partisan state offices…. Accordingly, the General Assembly has concluded that, for at least some partisan offices, primary elections are unnecessary."
"Therefore, were this Court to order the State to conduct a general congressional election without holding primary elections, that would be
consistent with the General Assembly’s policy preference as to at least some offices. "
So, the court throws out some “options” to consider:
—new maps with no primary election, just a general
—new maps with Nov. 7 primary election, then a future general election before January’s seating of a new Congress.
It’s also obvious that the court’s majority is “none-too-pleased” with the previous #NCGA action on maps and wants to know why the legislature should get a “second bite at the apple.”
And the court reserves the right to appoint a Special Master to draw the maps, or choose from some of the maps drawn during the trial.
So…there ya are. 294 pages. Only about 3 hours to do (well, I did fix dinner and eat during this tweet storm). Thanks for bearing with me. We’ll probably discuss this all on @CharlotteTalks at 9 AM in the morning, so join us on @WFAE then for that & more.


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