The new North Carolina redistricting map raises important questions about the current limits of

political gerrymandering jurisprudence. As I point out in a forthcoming article (William & Mary
Bill of Rights Journal, April 2016), the Court has upheld redistricting based on political affiliation
information ("political gerrymandering") where the proffered state interest is "partisan balance"
(Cromartie) or "political fairness" (Gaffney), but has never condoned political redistricting to
advance an alleged state interest in "political advantage" (which would amount to partisan, rather
than just political, gerrymandering). In Cromartie, the congressional delegation was split 6-6,
which reasonably reflected statewide voter preference. This is similar to Gaffney, where the State
"took into account the party voting results in the preceding three statewide elections, and, on that
basis, created what was thought to be a proportionate number of Republican and Democratic
legislative seats." 412 U.S. 735, 738 (1973). This distinction was central to the Gaffney holding,
which pointed out that the Supreme Court had no role to play when a State "undertakes, not to
minimize or eliminate the political strength of any group or party, but to recognize it and, through
districting, provide a rough sort of proportional representation in the legislative halls of the
State." Id. at 754.
In North Carolina, the legislature is attempting to justify a map with a 10-3 split, which does not
reasonably reflect statewide voter preference, based on an alleged state interest in political
advantage. For reasons I discuss at length in my article, I do not believe partisan advantage is a
legitimate state interest. (Can the State itself be said to have an interest in electing Democrats or
Republicans? Could the State proffer an interest in "partisan advantage," rather than "preventing
voter fraud" or "electoral integrity," to justify voter identification laws in court?)
In fact, if any redistricting plan were to tee up this issue, North Carolina's proposed map would
seem to be it. Under the subtle header "Partisan Advantage," the State's Joint Select Committee
on Congressional Redistricting adopted districting criteria that expressly state: "The partisan
makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats.
The Committee shall make reasonable efforts . . . to maintain the current partisan makeup of North
Carolinas congressional delegation." Even more pointedly, the criteria state that "[d]ivision of
counties shall only be made for reasons of equalizing population, consideration of incumbency
and political impact." In other words, the State appears to have just attributed the districts'
deviations from neutral criteria largely to incumbency and partisan performance criteria, since
equalizing population is not weighed in a predominance analysis. See Bethune-Hill, No.
3:14CV852, 2015 WL 6440332, at *24-35 (E.D. Va. Oct. 22, 2015) (applying three-step
predominance test). Moreover, the Joint Committee's express invocation of its partisan goal comes
close to the hypothetical posed by Justice Kennedy in Vieth: If a State passed an enactment that
declared All future apportionment shall be drawn so as most to burden Party X's rights to fair and
effective representation, though still in accord with one-person, one-vote principles, we would
surely conclude the Constitution had been violated. 541 U.S. at 267, 312 (2004).
Perhaps a new chapter awaits in North Carolina's Shaw saga.