North Carolina Three-Judge Panel Smartly Uses the Room the U.S. Supreme Court in Rucho v. Common Cause Left for State Courts to Enforce State Constitutions


Two months ago, I wrote on this website that in the wake of the U.S. Supreme Court’s decision in Rucho v. Common Cause, state courts would be well advised to avoid relying on the federal Constitution to address the problem of partisan gerrymandering, and instead to look only to state law. In Rucho, the Court held that federal courts had no role to play in policing partisan gerrymandering in the name of the federal Constitution. As I argued, “[s]tate courts that want to insulate their decisions from federal reversal should, . . . make quite clear that any rulings they render regulating partisan gerrymandering rest on independent and adequate state-law grounds.” I am happy to report that the most significant post-Rucho ruling by a state court has done just that.

On September 3, a three-judge state North Carolina Superior Court panel ruled, in Common Cause v. Lewis, that the 2017 districting maps drawn by a Republican-controlled state legislature ran afoul of various provisions of the North Carolina Constitution in a way that, under state law, state courts were fully competent to address, notwithstanding Rucho.

I have no reason to think the North Carolina judges were moved by or even saw my arguments, but I am nonetheless heartened that they approached Rucho the way I do, that is, as a case not simply about federal court justiciability hurdles (which state courts needn’t emulate), but as one in essence about the substantive federal constitutional constraints—or, rather, the absence thereof—on partisan gerrymandering by state legislatures. In particular, the North Carolina three-judge court made three analytic moves that, together, illustrate the court’s sophistication and insulate its decision from federal appellate review.

First, the North Carolina judges highlighted the ways in which the text of the North Carolina constitution goes well beyond the words of the federal constitutional document that the Rucho Court found simply did not speak to partisan gerrymandering. For example, the Lewis court relied extensively on the state constitution’s Free Election Clause and pointed observed that “the federal Constitution contains no similar counterpart to this [North Carolina] declaration.” The Lewis judges even went so far as to explicitly point the way for other state courts in other states, adding that “several other state constitutions do [contain counterparts to this North Carolina provision].” The Lewis court then went on at some length to discuss the specific historical backdrop, textual breadth, and state judicial interpretation of this North Carolina-specific provision, driving home the point that state law goes beyond federal law in taking on the subject of partisan abuses in drawing district lines.

Moreover, even where the Lewis judges relied on state constitutional text that mirrors the federal Constitution’s words (as regards, for example, “equal protection”), the Lewis court emphasized and cited state court cases construing state-law language to have a meaning different from that of similar language in federal law. In this regard, the judges explicitly and repeatedly reminded that “North Carolina’s Equal Protection Clause provides greater protection for voting rights than federal equal protection provisions. . . . North Carolina courts can and do interpret even ‘identical terms’ in the State’s Constitution more broadly than their federal counterparts.”

Interestingly (and this is my second point), the Lewis court’s precision in relying on state law did not prevent the judges, in the substantive parts of their ruling, from making use of and citing to analytic tools and language that federal courts had developed in implementing laws such as the federal Voting Rights Act. According to the leading U.S. Supreme Court case (Michigan v. Long), a state court can refer to and even quote from federal cases and principles in fashioning doctrine under state law, and those mentions of federal source materials do not convert the case into one arising under federal law, so long as the state court makes clear, as the Lewis ruling does, that state law is “independent” of federal law in the sense that state law would be what it is regardless of how interpretation of federal law might evolve over time.

Third, and perhaps most important, in taking head on why partisan gerrymandering is not a “political question” under the North Carolina constitution the way the Rucho Court held it was under the federal Constitution, the Lewis judges were clear and direct: because the North Carolina case involved interpretation and implementation of specific state constitutional provisions that bore directly on partisan gerrymandering, there was no concern that the dispute was a political rather than a legal one (the flaw in the Rucho plaintiffs’ claim). Unlike in Rucho, there were various provisions of the North Carolina constitution whose history, text, and past interpretation spoke to the problem of partisan gerrymandering. As the Lewis court put the point, “[i]n North Carolina, cases presenting a ‘conflict between . . . competing constitutional provisions’ involve proper ‘constitutional interpretation . . . rather than a nonjusticiable political question arising from nothing more than a policy dispute.” That is a straightforward explanation of why there is state law to apply, even where there may be no analogous federal constitutional limitations.

The Lewis ruling is thus based on an “adequate and independent” state-law ground, leaving no possibility that federal courts could reverse. Of course, the North Carolina Supreme Court could conceivably overrule the lower state courts’ understanding of North Carolina law, but it appears that the State Attorney General does not plan a state supreme court appeal, leaving Lewis as the final word on this matter, for now, in the state.

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