What Common Cause v. Lewis means for the future

by | Sep 6, 2019 | 2020 election, The Kovach Corner

This week, a Wake County Superior Court issued a decision in the infamous Common Cause v. Lewis case. Their decision overturned the oft-litigated legislative maps in North Carolina, which for decades have churned through the court system as the party in power drew maps unfairly electing their own.

Not only does this decision have implications for 2020, when new maps will be drawn — it augurs well for a more equitable Congressional delegation.

In 2010 and 2012, numerous state legislatures across the nation flipped from Democratic control to Republican control, and in many more states, like North Carolina, that control was more than just a simple majority. Supermajorities in the North Carolina House and Senate made any input from the minority party unnecessary. Republican legislators were able to pass bills at a record clip, transforming what was once a moderate Democratic state into a hardline conservative test case.

The reason for their supermajorities was gerrymandering. The timing could not have been more perfect: redistricting occurs after each census, so after gaining absolute power in the two years leading up to the process, Republicans were poised to draw whatever maps they saw fit. This solidified their rule and made their majorities insurmountable. In fact, Democrats garnered a slight majority of legislative votes statewide and still fell far short of majorities in either house. Of course, winning more votes statewide means nothing when each district elects its own representatives. But it does seem like something is amiss when the makeup of the legislature does not reflect the statewide vote whatsoever.

Yesterday, the Wall Street Journal penned a scathing editorial where they decried the decision as some sort of Democratic usurpation of redistricting. With Karl Rove, one of the brainchildren of the Republican scheme to gerrymander the states, as a columnist, that sentiment should come as no surprise. What the decision this week demonstrates is how the third branch of government, the judiciary, can save the rest of us from a legislature run amok.

State Senator Jeff Jackson struck a different tone when I asked him about the decision.

“Fair maps are an ethical imperative; taking the majority is just a political goal. Whether or not fair maps put us closer to the majority, they’re still good in and of themselves.”

Obviously, fairer maps will yield more seats, or at least more competitive seats, for Democrats to contend. There’s no way around it: the decision will help Democrats. That’s the entire reason Republicans have slow-walked the court process. As Jackson went on to say, “If a fair map doesn’t help us, then why’d they go to so much effort to draw an unfair map?”

“If a fair map doesn’t help us, then why’d they go to so much effort to draw an unfair map?”

State Senator Jeff Jackson

The decision couldn’t have come at a better time. Republicans took control of the state legislature right when redistricting was set to occur. Now, Democrats will have a seat at the table leading into the 2020 census and upcoming redistricting. In fact, 2020 is even more important because of reapportionment. With North Carolina continuing to grow in population, we’re almost guaranteed to gain another seat in Congress, meaning a 14th congressional district. That seat would probably go somewhere near Raleigh, making it a Democratic-leaning district.

And what does this decision mean for congressional districts, now that we’re on the subject? It’s hard to say now, but another court case may work its way through the same gerrymander-averse system. Senator Berger chose not to take the Common Cause v. Lewis case to the North Carolina Supreme Court, which is a fair decision given their 6-1 Democratic majority.

I consulted former Judge Bob Orr on the implications of the case. Instead of abridging his response, I’ve put it here in full:

A trial court decision does not establish precedent. It is the law of the case (this particular redistricting suit). The decision is broken into three parts: the Finding of Facts (overwhelming evidence to support the FOF); Conclusions of Law (COL) that appear to be correct interpreting and applying provisions in the NC Constitution; finally, the remedy ordered which is the “teeth” of the decision. Very little chance of getting a reversal on the FOF or COL and the Remedy applies only to this case. Take it to the Supreme Court and the GA could very well have a binding precedent as to the Remedy for prospective litigation after 2020. The question is whether the GA leadership is willing to move toward redistricting reform now.

Basically, Republicans would fare no better taking this to a higher court and establishing a sweeping precedent. Instead, the decision applies to this specific case, and the districts must be redrawn. What remains to be seen are the implications this may have on congressional redistricting. It could make all the difference in control of the US House of Representatives, and the course of the nation.


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