January 11, 2017

By: Whitney Snyder

Yesterday, a panel of the District Court for the Middle District of North Carolina, including Judge Wynn of the Fourth Circuit Court of Appeals, held North Carolina’s 2016 districting plan unconstitutional under the Federal Constitution in Common Cause and LWV v. NC.  The court first found the controversy justiciable.  Going on to address the constitutional claims, the court held the plan violates the Equal Protection Clause of the Fourteenth Amendment and First Amendment.

Various similarities exist between the court’s opinion and the LWV v. PA proceeding, especially as to First Amendment theories.  We first analyze the North Carolina federal court’s application of equal protection and First Amendment precedent, then explain potential points that may be persuasive to the Pennsylvania Supreme Court.

Equal Protection

Plaintiffs were able to show violation of equal protection via (1) discriminatory intent and (2) discriminatory effects that (3) were not attributable to the State’s political geography or another legitimate redistricting objective.

First, to show discriminatory intent, the Court held Plaintiffs could meet their burden with an inference from the totality of relevant facts, such as a clear pattern, unexplainable on grounds other than discrimination.  The court held Plaintiffs met their burden with evidence of:

(a) the facts and circumstances surrounding the drawing and enactment of the 2016 Plan;

(b) empirical analyses of the 2016 Plan; and

(c) the discriminatory partisan intent motivating the 2011 Plan, which the General Assembly expressly sought to carry forward when it drew the 2016 Plan.

Notably, the Court relied on Dr. Chen’s simulation analysis, which showed, similar to his analysis in the LWV v. PA proceeding, that since a computer could randomly generate thousands of redistricting plans following traditional redistricting criteria and the 2016 plan fell completely outside the range of the plans the computer generated, they could conclude traditional redistricting criteria do not explain the 2016 plan.  Thus, Dr. Chen’s analysis was evidence that discriminatory intent was the primary intent of the plan.

Second, the court found Plaintiffs proved discriminatory effects using 3 categories of evidence:

(a) the results of North Carolina’s 2016 congressional election conducted using the 2016 Plan;

(b) expert analyses of those results revealing that the 2016 Plan exhibits “extreme” partisan asymmetry;

(c) Dr. Mattingly’s and Dr. Chen’s simulation analyses; and

(d) the results of North Carolina’s 2012 and 2014 elections using the 2011 Plan—the partisan effects of which the General Assembly expressly sought to carry forward when it drew the 2016 Plan—and empirical analyses of those results.

The court again relied on Dr. Chen’s simulation analysis that showed 78 percent of the simulated plans would have elected three-to-four fewer Republican candidates, with all plans electing at least one fewer Republican candidate.

Third, the court found that it was the government’s burden to show a legitimate state interest justified the plan since Plaintiffs had shown both discriminatory intent and effect.  The court found the government’s evidence and arguments that natural packing in urban areas or protection of incumbents explained the 2016 plan could not overcome the simulation analysis Dr. Chen presented.

Free Speech

The court’s First Amendment analysis began with whether First Amendment protections can be applied to partisan gerrymanders.  It found that partisan gerrymandering violates the First Amendment in four ways:

(1) “by favoring one set of political beliefs over another, partisan gerrymanders implicate the First Amendment prohibition on viewpoint discrimination”

(2) “by seeking to dilute the electoral speech of supporters of disfavored parties or candidates, partisan gerrymandering runs afoul of the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers.”

(3) “by disfavoring a group of voters based on their prior votes and political association, partisan gerrymandering implicates the First Amendment’s prohibition on burdening or penalizing individuals for engaging in protected speech”

(4) “partisan gerrymandering implicates First Amendment precedent dealing with electoral regulations that have the potential to burden political speech or association.”

The court proclaimed:

Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines.

The court went on to find the 2016 plan implicates all four theories of First Amendment protection against partisan gerrymandering:

(1) “The 2016 Plan discriminates against a particular viewpoint: voters who oppose the Republican platform and Republican candidates.”

(2) “The 2016 Plan also discriminates against a particular group of speakers: non-Republican candidates and voters who support non-Republican candidates.”

(3) “The General Assembly’s use of Political Data—individuals’ votes in previous elections—to draw district lines to dilute the votes of individuals likely to support non-Republican candidates imposes burdens on such individuals based on their past political speech and association.”

(4) “And the 2016 Plan’s partisan favoritism excludes it from the class of “reasonable, politically neutral” electoral regulations that pass First Amendment muster.”

Using this applicable precedent, the court developed a three-part test for First Amendment gerrymandering claims:

(1) that the challenged districting plan was intended to favor or disfavor individuals or entities that support a particular candidate or political party,

(2) that the districting plan burdened the political speech or associational rights of such individuals or entities, and

(3) that a causal relationship existed between the governmental actor’s discriminatory motivation and the First Amendment burdens imposed by the districting plan.

The court’s First Amendment test and application thereof is substantially similar to the equal protection test. The court found Plaintiffs met the First Amendment test because:

(1) Plaintiffs had already shown discriminatory intent to subordinate interest of entities and voters who supported, or were likely to support, non-Republican candidates under the equal protection analysis.

(2) Plaintiffs showed the plan burdened free speech in two ways: (i) a chilling effect on free speech because people chose not to vote because they felt their vote did not count and it was difficult for Democrats to raise funds in districts that would go to Republicans because of the plan design, (ii) and Democratic votes were diluted.

(3) The court interpreted this prong to mean that where the first two prongs are met, causation is shown where the government cannot show a legitimate interest supporting the contours of the plan, which is the same as the third prong of the equal protection test applied. Thus, causation was shown relying on the equal protection analysis.

Potential Application in LWV v. PA

While not controlling, especially since LWV v. PA is a claim under Pennsylvania’s Constitution, the North Carolina court’s well-reasoned and thorough analysis could ring persuasive to the Pennsylvania Supreme Court.

First, as to equal protection, Common Cause and LWV v. NC shows federal precedent on the test to be applied continues to transform and that a justiciable standard exists using the three-prong discriminatory intent, purpose, no other explanation test.  The court there found evidence strikingly similar to that presented in LWV v. PA met the test.  The Pennsylvania Supreme Court is free to alter the equal protection test as to gerrymandering claims under Pennsylvania Constitution equal protection provisions, and if it adopts a similar test, it could avoid the flaws Judge Brobson found fatal:  Democratic voters are not an identifiable group and application of the “essentially . . . shut out of the political process” prong of Erfer.

Second, as to free speech protections, the Court gave a multitude of federal precedent that could be applied to gerrymandering claims and showed how to apply it under related federal precedent.  Under Pennsylvania precedent, Pennsylvania’s Constitution gives greater free speech protections than the First Amendment, so if Petitioners can show any of these federal law theories result in a violation of free speech protections, they must result in a violation of Pennsylvania’s free expression protections.

Judge Brobson did not adopt or apply any of the federal theories Petitioners advanced.  Instead, he cited and explained the fourth First Amendment theory (electoral regulation precedent) that the Common Cause and LWV v. NC applied to find the 2016 plan violated the First Amendment.  Under that theory, the court applies a sliding scale scrutiny test (we referred to this as Timmons sliding-scale scrutiny in Part 9) and for regulations that do not impose a severe burden on voting rights, apply intermediate scrutiny.  In Common Cause and LWV v. NC, the court created its own intermediate scrutiny test for First Amendment claims, that it appears Petitioners in LWV v. PA would meet if adopted.  However, Petitioners have not advanced this specific test, and under Pennsylvania law, as we explained in Part 9, it appears strict, not intermediate scrutiny should be applied to any First Amendment claim.  The court also gave numerous insights into how other First Amendment precedent can be applied to political gerrymandering cases that Petitioners have already argued.

About the Author:  

Whitney Snyder, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in wide-ranging appellate matters in state and federal court.  Her practice focuses primarily on administrative agency appeals and litigation.  Prior to joining the firm Whitney interned at the Pennsylvania Supreme Court and Pennsylvania Public Utility Commission.