After the Supreme Court barred federal courts from reviewing redistricting cases (details here), it was easy to assume there’s no longer any judicial check on gerrymandering, which just keeps getting worse as Republicans try to consolidate minority-party rule over broad swaths of the American landscape.
(For a grotesque example of abusive gerrymandering, Republicans lost the popular vote 53%-45% in Wisconsin’s 2018 state assembly elections, but “won” 63 of 99 of the assembly seats (details here). But the U.S. Supreme Court’s Republican majority has ruled that federal judges can’t intervene against abuses like this to protect democracy in America.)
However, the SCOTUS prohibition against interfering with extreme gerrymandering applies only to federal judges; and in some places, state courts are stepping into the void and striking down undemocratic redistricting schemes. Recently, state courts have thrown out GOP redistricting plans in Ohio, Alabama, Pennsylvania, and now North Carolina.
In the North Carolina case, four Democratic justices struck down a GOP redistricting scheme affecting state legislative seats, while three Republican justices voted to decline jurisdiction and dismiss the case (story here; read the 20-page order here). But it’s not just the partisan split on the issue that’s noteworthy; the GOP dissenters’ reasoning is worthy of comment for its silliness.
First, the Democratic majority based its conclusion on specific provisions of the state constitution. “When, on the basis of partisanship,” they wrote, “the General Assembly enacts a districting plan that … systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size — the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”
This reasoning is in accord with the famous “one person, one vote” principle of the U.S. Supreme Court’s 1962 Baker v. Carr case (details here). So, whether you agree with it or not, their conclusion is based on a reasonable principle and prior legal precedents.
The Republican justices claim that “violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution.” That’s factually inaccurate. The majority’s decision does no such thing. All they did was review the legislature’s action and conclude it violated the federal and state constitutions. Courts do this all the time. They’ve been doing it since the Marbury v. Madison case of 1802 established judicial review as an essential component of checks and balances.
As it’s unlikely the Republican dissenters are discarding the judicial review doctrine, which would greatly diminish their own power, or abandoning checks and balances, this can only be an excuse, and you can stash that response in the “selective partisan outrage” file. If this dissent was a paper submitted by a second-year law student, it would evoke horse laughs. It looks like it was hastily written in an afternoon by someone who didn’t want to be distracted from watching the NFL playoffs.