Originally Published: October 27, 2023 2:04 p.m.
The North Carolina legislature giddily passed its new congressional map Wednesday, an aggressive gerrymander that would near-automatically flip three currently Democratic seats and make a fourth a more Republican friendly tossup.
A combination of state and federal factors make it very unlikely that the map will be taken down by the 2024 election. At the state level, North Carolina has seen the elbowing out of the (currently Democratic) governor from the process, a lack of any opportunity for direct citizen action and a newly extremist right-wing North Carolina Supreme Court. At the federal level, the U.S. Supreme Court has closed the courthouse door to partisan gerrymandering cases.
After the 2022 election, when the North Carolina Supreme Court was re-stocked with right-wing justices, the court rubber-stamped the legislature's partisan gerrymander, reversing a mere months-old decision by its more liberal predecessor. With no recourse for a partisan gerrymandering claim available there, that leaves a racial dilution claim under the Voting Rights Act, which can still be adjudicated at the federal level.
VRA cases, though, are long and intensive, centering on granular dives into the districts' political and racial makeup, voting histories and community interests. They usually involve lengthy trials with pages and pages of expert testimony, model maps and lots of procedural stops and starts. It's also not clear that the North Carolina map — while an unmistakable partisan gerrymander — is also a racial one (though some Democratic lawmakers and advocates are already planning to prove that it is).
On top of those complications, the Supreme Court has made it all but impossible to gauge when is too close to an upcoming election to change election and voting laws.
"Given the erratic Supreme Court decisions on when to press pause before elections, I don't think there's likely time to bring a case and get new maps before 2024, even if there are solid cases to be brought," Justin Levitt, a professor at Loyola Law School and a former Biden White House senior policy advisor for democracy and voting rights, told TPM.
A successful VRA case could still unwind the maps for future elections, even if the clock runs down on this one.
In the meantime, it seems likely that Republican entrenchment in the state before any voter even casts a ballot will continue, leaving a Republican strategist in the state to crow that "elections have consequences."
A three- or four-seat boost in North Carolina would be a boon to Republicans nationally as they try to preserve — and, especially after the speakership chaos of the past few weeks, grow — their slim House majority. But it won't be the end of the story.
Ongoing litigation in Alabama, Louisiana and Georgia will likely produce a few majority-Black districts, which are almost certain to elect Democrats. And despite the reality that a vanishingly small number of House districts remain competitive after years of gerrymanders, those that endure will be hotly contested. In New York, where Republicans had surprising success in 2022, there are now several frontline members fighting tooth and nail to retain their seats on blue soil. Rep. Suzan DelBene (D-WA), the chair of the Democratic Congressional Campaign Committee, suggested to TPM this week that those members' votes for a new anti-abortion, election-denying speaker will be part of the effort to oust them.
"There is no question that this boosts Republicans' chances," Levitt said, "but I don't think the right baseline is 'Does it give them three more seats than they have today?'"
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