Flowers and candles at the steps of the Supreme Court building in remembrance of Justice Ruth Bader Ginsburg. Photo by Gayatri Malhotra.

By Jacqueline K. Winters

On Sept. 26, less than two months before the election, President Donald Trump announced Amy Coney Barrett as his nominee for the Supreme Court.[1]  Considering Senate Majority Leader Mitch McConnell’s plans to swiftly move forward with the confirmation process and begin hearings on Oct. 12, it is likely that the Senate will confirm Barrett, a conservative and former clerk of Antonin Scalia’s,[2] before the November election.[3] Meanwhile, President Trump is employing rhetoric about voter fraud and a rigged election[4]—likely positioning himself to bring an Electoral College battle in front of the Court.[5] If history is precedent, a 6–3 conservative versus liberal Supreme Court composition would undoubtedly lend itself to a more favorable outcome for President Trump. The American public should anticipate that the confluence of these circumstances could result in Bush v. Gore[6]2.0—but this time, the battle may extend well beyond hanging chads.

There are a number of scenarios that could lead to the Supreme Court determining the fate of this election. One example, presented by Edward Foley of Ohio State University’s Moritz College of Law, would take place in the swing state of Pennsylvania.[7] If Trump is in the lead on election night, but Biden-friendly mail-in ballots flood in during the days following the election, a volatile partisan dispute could erupt.[8] In this scenario, Democratic Governor Tom Wolf could sign Pennsylvania’s certificate of ascertainment and list Democratic electors as the official Electoral College slate, while the Republican-led legislature appoints a different set of electors—a scenario that would result in legal challenges, possibly making its way up to the Supreme Court.[9] However, the Electoral Count Act of 1887[10] delegates the power to Congress to consider both sets of electors. Vice President Mike Pence could oversee the count in Congress, determining that Pennsylvania’s votes should be removed because the electoral slates conflict, causing Democrats to seek an injunction to stop this discount of Pennsylvania’s votes.[11] This is merely one illustration of partisan-fueled chaos that could ensue if there is a small margin between President Trump and Vice President Joe Biden on election night—a scenario ominously reminiscent of the 2000 election, but in an even more sharply divided political climate.[12] 

On Dec. 12, 2000, The United States Supreme Court announced in a 5–4 decision that the Supreme Court of Florida had violated the United States Constitution when it ordered a ballot recount in certain Florida districts.[13] In this historic decision, which resulted in George W. Bush assuming the presidency, the Court contended that the ballot recount violated the Equal Protection Clause of the Fourteenth Amendment because Florida counties were shifting vote-counting standards.[14] The Court’s decision reversed the Florida Supreme Court’s decision and stayed the manual recount of 42,000 “undervotes”—ballots on which automatic machine recounts had failed to detect a vote and which had not yet been manually recounted.[15] The decision was premised on the notion that the recount procedures—based on the clear intent standard, which required “‘a clear indication of the intent of the voter’”[16]—“did not satisfy [the] minimum requirement for non-arbitrary treatment of voters necessary, under the Equal Protection Clause, to secure [the] fundamental right to vote for President.”[17]

Since the 2000 decision, a holding the Court explicitly stated was “limited to the present circumstances,”[18] the precedential value of Bush v. Gore has been decidedly weak.[19] In Stewart v. Blackwell,[20] pertaining to Ohio’s use of punch card ballots and central-count optical scan systems, the U.S. District Court for the Northern District of Ohio’s relied upon Justice Souter’s dissent in Bush v. Gore to determine that different counties within the same state using different systems does not amount to a violation of the Equal Protection Clause.[21] The Sixth Circuit disagreed, reversing and remanding the district court’s decision.[22] In 2008’s Lemons v. Bradbury,[23] a plaintiff argued in front of the Ninth Circuit that county election officials lacking uniform statewide rules for verifying referendum signatures violated the rule set forth in Bush v. Gore.[24] The Ninth Circuit disagreed, stating that Oregon’s verification process did not violate voters’ constitutional rights.[25] 

In large part, lower court decisions that have relied on Bush v. Gore have generally been overturned or limited,[26] and until 2013, when Justice Clarence Thomas cited the case in a footnote of a dissenting opinion in an Arizona voter-registration case,[27] the Supreme Court had not cited the case for any proposition. Recently, however, President Trump and his campaign have invoked the case in legal battles in Nevada[28] and New Jersey,[29] undoubtedly in preparation for mounting a Bush v. Gore-inspired argument in front of the Supreme Court in November.

President Trump’s continued efforts to challenge the legitimacy of mail-in voting—despite the FBI’s findings that there is no evidence of any foreign plot to counterfeit or forge mail ballots[30]—are likely representative of his willingness to be fiercely litigious in November.  With a more-likely-than-not conservative Court and murky-at-best precedent, the November election will prove an uphill battle for Democrats. The precedential value of Bush v. Gore will be in the spotlight for the first time since 2000, and the Supreme Court will possibly provide clarity on this debated issue—potentially changing the course of American presidential elections for generations to come.


[1] Peter Baker & Nicholas Fandos, Trump Announces Barrett as Supreme Court Nominee, Describing Her as Heir to Scalia, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/amy-coney-barrett-supreme-court.html.  

[2] Id.

[3] Deirdre Walsh, What Amy Coney Barrett’s Supreme Court Nomination Means for the 2020 Election, Nat’l Pub. Radio (Sept. 27, 2020, 7:00 AM), https://www.npr.org/2020/09/27/917303199/what-amy-coney-barretts-supreme-court-nomination-means-for-the-2020-election.  

[4] Miles Parks, Ignoring FBI and Fellow Republicans, Trump Continues Assault on Mail-In Voting, Nat’l Pub. Radio  (Aug. 28, 2020, 12:46 PM), https://www.npr.org/2020/08/28/906676695/ignoring-fbi-and-fellow-republicans-trump-continues-assault-on-mail-in-voting.

[5] Jeet Heer, Trump Wants Another ‘Bush v. Gore, The Nation (Sept. 23, 2020), https://www.thenation.com/article/politics/trump-court-election-vacancy/.

[6] 531 U.S. 98 (2000).

[7] Geoffrey Skelley, What If Trump Loses and Won’t Leave?, FiveThirtyEight (Sept. 14, 2020, 9:15 AM), https://fivethirtyeight.com/features/what-if-trump-loses-and-wont-leave/.

[8] Id.

[9] Id.

[10] Id.; see Electoral Count Act, ch. 90, 24 Stat. 373 (1887) (codified as amended at 3 U.S.C. §§ 5–7, 15–18).

[11]  Skelley, supra note 7.

[12] Dean Bonner, Voter Registration Is Up Sharply, as Is Partisanship, Pub. Pol’y Inst. of Cal. (Aug. 27, 2020), https://www.ppic.org/blog/voter-registration-is-up-sharply-as-is-partisanship/

[13] Bush v. Gore, 531 U.S. 98, 103 (2000).

[14] Id. at 106.

[15] Id. at 100.

[16] Id. at 131.

[17] Id. at 98.

[18] Id. at 109.

[19] Chad Flanders, Please Don’t Cite This Case!: The Precedential Value of Bush v. Gore, 116 Yale L.J. Pocket Part 141, 144 (2006), https://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore.

[20] Stewart v. Blackwell, 356 F. Supp. 2d 791 (N.D. Ohio 2004), rev’d in part, vacated in part, 444 F.3d 843 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[21] Id. at 808.

[22] Stewart v. Blackwell, 444 F.3d 843, 880 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[23] 538 F.3d 1098 (2008).

[24] Id. at 1105.

[25] Id. at 1107.

[26] Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo. Wash. L. Rev. 1865, 1867 (2013).

[27] Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 35 n.2 (2013) (Thomas, J., dissenting); see Joan Biskupic, Trump Revives Bush v. Gore in His Crusade Against Mail-In Voting, CNN Pol. (Aug. 24, 2020), https://edition.cnn.com/2020/08/24/politics/supreme-court-bush-gore-trump-lawsuits/index.html.  

[28] United States District Court Judge James Mahan dismissed the Trump campaign’s case in Nevada, stating that a law that calls for mail-in ballots to be sent automatically to all active Nevada voters in light of the coronavirus pandemic did not demonstrate any constitutional harms. See Donald J. Trump for President, Inc. v. Cegavske, No. 20-CV-1445, 2020 WL 5626974, at *7 (D. Nev. Sept. 18, 2020); see also Michelle L. Price, Judge Dismisses Trump Challenge to Nevada Mail Voting Law; Associated Press (Sept. 21, 2020), https://apnews.com/article/nevada-lawsuits-elections-voting-fraud-and-irregularities-campaigns-17adaf09734fd720b1a1477451f2540c; Biskupic, supra note 27.

[29] See Complaint for Declaratory & Injunctive Relief at 155, Donald Trump for President, Inc. v. Murphy, No. 20-CV-10753, (D.N.J. Aug. 18, 2020), ECF No. 1; see also Biskupic, supra note 27.

[30] Parks, supra note 4.

By Alexander S. Boros

So far, 2020 has felt like an eternity and yet we are just four months in.  The spread of COVID-19 has turned the entire world upside down and has transformed the economy in a way we have never seen before.  One of the more interesting twists of fate in the midst of this global crisis was the end of sports in America.[1]  When COVID-19 struck, sports were in full swing: college basketball was entering its postseason, the NBA, MLS, and NHL were mid-season, and Major League Baseball was in the middle of Spring Training.[2]  By March 12, however, state and national social distancing guidelines created “The day the sports world stopped.”[3]  In the coming days, restaurants and bars would shut down and states across the country would shut down all non-essential businesses.[4] 

Millions of Americans would be shut in their homes to flatten the curve but were left without some unifying outlet of entertainment.  Online resources, available from the safety of our own homes, have become the only connection to the outside world.  Internationally, online poker tournaments set records for participation and prize pools, though such gambling is virtually illegal in the United States.[5]  Instead, American gamblers have increasingly wagered on sporting events as their chosen form of entertainment.[6]  When sports shut down, however, that multimillion-dollar gambling industry was also removed from the equation.  In North Carolina alone, sports gambling was expected to bring in $14 million to casinos and $1 million in tax revenues.[7]  Throughout the country, newly developed and well-established sportsbooks alike began facing a question suddenly on the lips of many small businesses owners: How will we stay in business?[8]

It turns out, there is no way to shut down American ingenuity.  In the beginning of April 2020, American sportsbooks FanDuel, DraftKings, and BetMGM each reached out to West Virginia’s Lottery for approval to accept bets in “political market[s].”[9]  Specifically, DraftKings hoped to accept bets on four markets: (1) Winner – Presidential Election; (2) Winning Party Overall; (3) Over/Under seats for each Party – Senate Over/Under for each Party – House Over/Under number of States won; (4) Over/Under Electoral College Votes Obtained and Turnout percentage.[10]  In these conversations, it was taken as a given that gambling on state and local elections was not allowed.[11]  On April 7, the state lottery approved each of the markets.[12]

Betting on elections is “nothing new” internationally.[13]  International gambling websites like InTrade and BetFair became popular in 2012, and the 2016 election brought in record numbers of bets and revenue.[14]  Opening political markets in the United States is a massive opportunity for states as well.[15]  Forecasts suggest that presidential election gambling would produce $1.1 million in new wagers and generating $150 thousand in new tax revenue for West Virginia alone.[16]  Those same projections expected nearly double the wagers on the Presidential election than were placed on Super Bowl LIV.[17]  That is because, although sports are hugely popular in the United States, they do not affect everyone.[18]  American democracy, on the other hand, affects everyone in this country.  Thus, political gambling is hugely popular with first time betters.[19]  In Europe, 12 percent of all wagers placed on the 2016 election were new betters.[20]  That number is nearly six times higher than the percentage of new betters across all other markets offered that year.[21]

Even though initial approval was given to West Virginia’s Sportsbooks, Mac Warner, West Virginia’s Secretary of State, quickly shut down the idea and revoked the approval.[22]  That’s because, in West Virginia, it is “unlawful to bet or wager money or other thing of value on any election held in [the] state.”[23]  It turns out that’s a common restriction across the fifty states.[24]  But should it be?

While direct wagering on elections is illegal,  predictive markets allowing “investing” in political outcomes have been operating within the United States since 1993.[25]  Two of the largest in the country, PredictIt and the University of Iowa’s Electronic Markets, limit the amount of money that can be invested at any time, and all data from the markets is used for research purposes.[26]  Although scholars are divided as to whether there is really a difference between these two markets, arguably the overall results are the same.[27]  At the end of the day, these markets include placing money on candidates based on their odds with either losses or gains that are realized.  Put simply, it is hard to see the distinction between the two forums.  This discussion may be the result of “being so preoccupied with whether or not they could [without stopping] to think if they should.”[28]  That may be a question for a different article.  If Sportsbooks can develop the appropriate, anti-corruption protections to ensure that unfettered gambling does not run amuck on our elections, the country’s next great sport spectacle may well be America’s democracy.


[1] See Mike Vaccaro, The Day Coronavirus Sent the Sports World Into Darkness, N.Y. Post (Mar. 12, 2020, 6:38 PM), https://nypost.com/2020/03/12/the-day-coronavirus-sent-sports-into-hibernation-has-come/.

[2] Id.

[3] Id.

[4] See, e.g., Gabriella Borter, New York Governor Orders All Non-essential Businesses Closed, Says Everyone Must Stay Home, Reuters (Mar. 20, 2020, 11:51AM), https://www.reuters.com/article/us-health-coronavirus-usa-new-york/new-york-governor-orders-all-non-essential-businesses-closed-says-everyone-must-stay-home-idUSKBN2172JP.

[5] David Purdum, Online Poker Tourney Sets Record Amid Pandemic, ESPN (Mar. 24, 2020), https://www.espn.com/chalk/story/_/id/28948562/online-poker-tourney-sets-records-amid-pandemic (noting online poker is legal in only a handful of U.S. states).

[6] See Alexander Boros, North Carolina is All-in on Sports Betting, Wake Forest L. Rev.: Current Issues Blog (Aug. 27, 2020), http://wakeforestlawreview.com/2019/08/north-carolina-is-all-in-on-sports-betting/.

[7] See Andrew Westney, NC House Approves Cherokee Sports Betting Bill, Law360 (July 16, 2019), https://www.law360.com/articles/1177393/nc-house-approves-cherokee-sports-betting-bill (“The bill’s supporters expect sports betting to generate $14 million in annual revenue for the tribe and about $1 million a year for the state.”).

[8] David Purdum, Wynn Las Vegas Temporarily Closing Sportsbook Due to the Coronavirus, ESPN (Mar. 13, 2020), https://www.espn.com/chalk/story/_/id/28900242/wynn-las-vegas-temporarily-closing-sportsbook-due-coronavirus.

[9] Adam Candee, Presidential Election Betting Asks In West Virginia Approved In An Hour, Emails Show, Legal Sports Rep. (Apr. 14, 2020, 1:23PM), https://www.legalsportsreport.com/39947/presidential-election-betting-west-virginia-emails/; see also Emails Between WV Lottery and Sports Betting Companies Regarding Elections Betting, Legal Sports Rep. (Apr. 14, 2020), https://www.documentcloud.org/documents/6837062-Emails-between-WV-Lottery-and-Sports-Betting.html [hereinafter Lottery E-mails].

[10] Lottery E-mails, supra note 9, at 20; E-mail from Jacob List, DraftKings, to David Bradley, West Virginia Lottery (Apr. 7, 2020, 1:50 PM) (on file with author) [hereinafter List E-mail].

[11] Lottery E-mails, supra note at 9, at 20; List E-mail, supra note 10.

[12] Lottery E-mails, supra note 9at 25; E-mail from David Bradley, West Virginia Lottery, to Jacob List, DraftKings (Apr. 7, 2020, 4:58 PM) (on file with author) [hereinafter Bradley E-mail].

[13] Sarah Zhang, You Can Bet Real Money on the US Election. It’s for Research, Wired (Mar. 1 2016, 7:00AM), https://www.wired.com/2016/03/can-bet-real-money-us-election-uh-research/.

[14] Id.; see also Lottery E-mails, supra note 9, at 22 (“The biggest market in terms of volume matched in the history of the Exchange is the 2016 Next President market …”); E-mail from John Sheeran, PPB.Com, to David Bradley, West Virginia Lottery (Apr. 7, 2020, 2:10 PM) (on file with author) [hereinafter Sheeran E-mail].

[15] Lottery E-mails, supra note 9, at 18; E-mail from Erich Zimny, Vice President of Racing & Sports Operations, Hollywood Casino at Charles Town Races, to David Bradley, West Virginia Lottery (Apr. 6, 2020, 3:56 PM) (on file with author) [hereinafter Zimny E-Mail].

[16] Lottery E-mails, supra note 9, at 18; Zimny E-mail, supra note 15.

[17] Lottery E-mails, supra note 9, at 18; Zimny E-mail, supra note 15.

[18] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[19] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[20] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[21] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[22] Press Release, Andrew “Mac” Warner, Secretary of State Warner Releases Statement on Wagering on Elections in West Virginia (Apr. 8, 2020), https://sos.wv.gov/news/Pages/04-08-2020-A.aspx.

[23] W. Va. Code § 3-9-22 (2019); see Press Release, supra note 22.

[24] Tamar Lapin, Political Betting Was Legal in West Virginia – For About an Hour, N.Y. Post (Apr. 8, 2020, 9:27 PM), https://nypost.com/2020/04/08/political-betting-was-legal-in-west-virginia-for-about-an-hour/.  

[25] See Zeke Faux, PredictIt Owns the Market for 2020 Presidential Election Betting, BloomsBerg BusinessWeek (Aug. 1, 2019, 9:10 AM), https://www.bloomberg.com/news/articles/2019-08-01/predictit-owns-the-market-for-2020-presidential-election-betting; Theo Francis, Wanna Bet? The Market Has a View on the 2020 Election, Wall St. J. (Jan. 10, 2020, 1:11 PM), https://www.wsj.com/articles/wanna-bet-the-market-has-a-view-on-the-2020-election-11578679896.

[26] Research Opportunities, PredictIt, https://www.predictit.org/research (last visited Apr. 20, 2020); About the IEM, U. Iowa, https://iemweb.biz.uiowa.edu/about/?mod=djem_election2020&mod=article_inline (last visited Apr. 20, 2020).

[27] Alexandra Lee Newman, Manipulation in Political Prediction Markets, 3 J. Bus. Entrepreneurship & L. 205, 208 n.25 (2010) (“Prediction market scholars disagree about whether the CFTC legally can regulate public prediction markets generally under the CEA, or whether state gambling laws should regulate these markets.”) (citing to disagreement in literature regarding the differences and likenesses of predictive markets and gambling).

[28] Jurassic Park (Universal Pictures 1993).

By Samuel Gilleran

In a sweeping, 357-page ruling released yesterday afternoon, a three-judge panel of North Carolina Superior Court judges unanimously held that partisan gerrymandering violates multiple provisions of the North Carolina Constitution,[1] including the Equal Protection Clause,[2] the Free Elections Clause,[3] and the Freedom of Speech and Freedom of Assembly Clauses.[4]

The panel then proceeded to enjoin the use of the maps in the 2020 primary and general elections, ordered the General Assembly to enact new maps within two weeks, and forbade the use of “[p]artisan considerations and election results data.”[5] The panel further decreed that the General Assembly could not use the current map “as a starting point for drawing new districts, and no effort may be made to preserve the cores of invalidated 2017 districts.”[6] The panel forbade the use of outside consultants without Court approval and demanded that “the entire remedial process” must occur “in full public view. At a minimum, this requires all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers.”[7] Finally, the panel “retain[ed] jurisdiction” to adjust the dates of the 2020 primary elections in the event that such an adjustment was “necessary to provide effective relief in this case.”[8]

The panel noted that the allegations of partisan gerrymandering were essentially uncontested.[9] After all, in the related redrawing of the congressional district lines, Rep. David Lewis (R-Harnett), a leader in the Republican redistricting effort, plainly stated his belief that a “political gerrymander [was] not against the law” in urging the adoption of a map that would “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[10] The real question at issue was whether such gerrymandering was both proscribed under the North Carolina Constitution and justiciable by the North Carolina courts. The panel answered both questions affirmatively.

Before the panel expounded its holdings under the state constitution, it first explained why the Supreme Court’s opinion in Rucho v. Common Cause[11] did not control. As the panel noted, the Supreme Court explicitly reserved the issue of partisan gerrymandering for state review. It quoted the high court’s assertion that its opinion in Rucho did “not condone excessive partisan gerrymandering” and did not “condemn complaints about districting to echo into a void.”[12] “Rather, the Supreme Court held, ‘[t]he States . . . are actively addressing the issue on a number of fronts,’ and ‘[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.’”[13] The panel held that such provisions were present in North Carolina’s constitution.

First, the panel examined the Free Elections Clause. It noted that this clause “is one of the clauses that makes the North Carolina Constitution more detailed and specific than the federal Constitution in the protection of the rights of its citizens.”[14] The panel traced the evolution of the Free Elections Clause throughout the history of North Carolina’s legal system and concluded that it provides a justiciable right to North Carolinians; it is not merely hortatory or aspirational language.[15] It specifically pointed to a 1971 revision of the state constitution in which the wording of the clause was changed from “all elections ought to be free” to “all elections shall be free.”[16] “This change was intended to ‘make [it] clear’ that the Free Elections Clause and the other rights secured to the people by the Declaration of Rights ‘are commands and not mere admonitions’ to proper conduct on the part of the government.”[17]

The panel went on to hold that “[t]he partisan gerrymandering of the 2017 Plans strikes at the heart of the Free Elections Clause. . . . Elections are not free when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power. In doing so, partisan actors ensure from the outset that it is nearly impossible for the will of the people—should that will be contrary to the will of the partisan actors drawing the maps—to be expressed through their votes for State legislators.”[18]

In holding that North Carolina’s Free Elections Clause proscribed partisan gerrymandering, the panel’s logic tracked that of the Pennsylvania Supreme Court, which in 2018 held that a similar clause in that state’s constitution forbade partisan gerrymandering.[19] In that case, the court overturned a Republican gerrymander of Pennsylvania’s congressional districts; in the ensuing election, Democrats flipped three seats and came within 11,239 votes in three more.[20] Were it not for Pennsylvania’s political geography, in which there are 260,000 excess Democratic votes in the 3rd Congressional District (Philadelphia), Democrats could have won even more seats.[21]

Second, the panel examined North Carolina’s Equal Protection Clause.[22] The panel noted that the state version of the clause has been interpreted more broadly than the federal courts have interpreted the federal clause.[23] And so the panel relied on previous state supreme court precedents to explicate that North Carolina’s Democratic voters were being treated unequally and that because the fundamental right to vote was implicated, strict scrutiny applied.[24]

Third, the panel turned to the Free Speech and Free Assembly claims. The panel held that “the 2017 Plans discriminate[d] against . . .  Democratic voters based on their protected expression and association” and that “[d]iscriminating against citizens based on their political beliefs does not serve any legitimate government interest.”[25] The panel also held that the 2017 plans were unconstitutional under a retaliation theory of the Free Speech and Free Assembly Clauses; because Democratic voters had past protected political activity (i.e., voting for Democratic candidates) and because Republican mapmakers had chosen Democrats for negative treatment based on their protected activity, a retaliation claim was successful.[26]

Finally, the panel had to decide whether the claims were justiciable. After all, the Supreme Court had essentially held just a few months prior that while partisan gerrymandering was bad behavior, it was powerless to stop it due to a lack of judicially manageable standards. The panel held that the question of partisan gerrymandering did not fall within the political question doctrine; it is justiciable.[27] The panel specifically noted that one of the main purposes of the judicial branch of government was to be a check on the legislature’s desire to aggrandize power to itself. Citing a case from 1787, dating all the way back to the founding of the Republic, the panel declared:

“If unconstitutional partisan gerrymandering is not checked and balanced by judicial oversight, legislators elected under one partisan gerrymander will enact new gerrymanders after each decennial census, entrenching themselves in power anew decade after decade. When the North Carolina Supreme Court first recognized the power to declare state statutes unconstitutional, it presciently noted that absent judicial review, members of the General Assembly could ‘render themselves the Legislators of the State for life, without any further election of the people.’ Those legislators could even ‘from thence transmit the dignity and authority of legislation down to their heirs male forever.’ Extreme partisan gerrymandering reflects just such an effort by a legislative majority to permanently entrench themselves in power in perpetuity.”[28]

Notably, the panel rejected the argument that because gerrymandering had a long history, it was therefore constitutional. Citing to the seminal voting rights case Reynolds v. Sims, the panel stated that “widespread historical practices does not immunize governmental action from constitutional scrutiny.”[29] Merely because a practice was longstanding – and even, as in this case, engaged in by one of the Plaintiffs (i.e., the North Carolina Democratic Party) during the many years when it was in power – does not somehow eliminate the rights reserved by North Carolinians under the state constitution. The panel also rejected the idea that it needed to find a bright-line rule for how much partisan gerrymandering was too much, the question that so plagued the Supreme Court in Rucho. Instead, the panel stated the obvious: “[t]his case is not close.”[30] In essence, the panel held that, wherever the line is, this set of facts is so far past that line that Plaintiffs’ entitlement to relief is indisputable.

The reaction to the panel’s decision was swift. Sen. Jeff Jackson (D-Mecklenburg) tweeted that the ruling was “the single best news [he] ha[d] ever heard” during his time in the legislature,[31] while Rep. Graig Meyer (D-Orange) called the ruling “a big win for democracy and a game changer for 2020.”[32] But the biggest news came from Republican Senate Majority Leader Phil Berger (R-Rockingham), who announced that Republicans would not appeal the decision to the state Supreme Court. Although castigating the panel’s decision, Sen. Berger stated that “[n]early a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on. To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”[33] Election law scholar Rick Hasen suggested a few reasons why Republicans elected not to appeal, including the simple facts of sure loss in the North Carolina Supreme Court and the greater precedential value of the inevitable negative decision from that court.[34]

What are the practical ramifications of this decision? For the first time in a long time, Democrats truly believe they can win back majorities in each house of the legislature.[35] Republicans currently maintain a 65-55 margin in the state house, and given the sheer number of districts identified in the decision as unconstitutionally gerrymandered, Democrats have to feel good about the prospects of taking back at least that chamber. Democrats carried a majority of the two-party vote in 2018,[36] and it is historically likely that the electorate in 2020, a presidential year, will be younger and more racially diverse than in 2018, a midterm year.[37]

Judging from the simulations run by political scientists and adjusting for a 2020 political environment, Democrats have a strong chance at flipping House seats in Columbus County,[38] Cumberland County,[39] Franklin County,[40] Pitt County,[41] Guilford County,[42] Forsyth County (possibly two)[43], New Hanover County,[44] Onslow County,[45] Anson County,[46] and Alamance County.[47] If Democrats were able to flip even six of these eleven targets, it would give them a 61-59 majority in the state house, all other things being equal.

Similarly, on the Senate side, Republicans retain a 29-21 majority, so the Democrats would have to flip five seats. The panel’s ruling gives Democrats a reasonable chance at flipping seats in Mecklenburg County[48] and Wake County,[49] but in other gerrymandered districts that would be unwound by the ruling, such as in Guilford County and New Hanover County, Democrats managed to defeat the gerrymander in 2018. That said, unwinding the gerrymander makes the playing field different and, in a good year, could allow Democrats to take Senate seats that they ordinarily would not. In addition, when decennial redistricting occurs in 2021 after the 2020 census, it could be that a few seats will shift from rural to suburban and urban areas, thereby helping Democratic chances moving forward.


[1] Common Cause v. Lewis, No. 18-cv-14001, slip op. at 352–53 (N.C. Super. Ct. [Wake] Sep. 3, 2019), https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf.

[2] N.C. Const. art. I, § 19.

[3] N.C. Const. art. I, § 10.

[4] N.C. Const. art. I, §§ 12, 14.

[5] Common Cause, slip op. at 353–55.

[6] Id. at 355.

[7] Id. at 356.

[8] Id. at 357.

[9] Id. at 23.

[10] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[11] 139 S. Ct. 2484 (2019) (holding partisan gerrymandering non-justiciable under the federal Constitution).

[12] Common Cause, slip op. at 299 (quoting Rucho, 139 S. Ct. at 2507).

[13] Id. (emphasis added in Common Cause).

[14] Id.

[15] Id. at 303–04.

[16] Id. at 304 (emphasis added in Common Cause) (quoting N.C. Const.  art I, § 10) (comparing 1868 version to 1971 version).

[17] Id. (quoting N.C. State Bar v. DuMont, 304 N.C. 627, 635, 639, 286 S.E.2d 89, 94, 97 (1982)).

[18] Id. at 305.

[19] See League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[20] Pennsylvania Election Results, N.Y. Times (last updated Dec. 19, 2018, 5:12 PM), https://www.nytimes.com/interactive/2018/11/06/us/elections/results-pennsylvania-elections.html.

[21] Id.

[22] Common Cause, slip op. at 307.

[23] Id. at 308–09.

[24] Id. at 315–16.

[25] Id. at 328.

[26] Id. at 329–31.

[27] Id. at 334.

[28] Id. at 333 (quoting Bayard v. Singleton, 1 N.C. 5, 7 (1787)).

[29] Id. (citing Reynolds v. Sims, 377 U.S. 533, 582 (1964) (invalidating Alabama’s malapportioned legislative districts despite a history of malapportionment that dated back to the founding). North Carolina itself engaged in such malapportionment, which has been documented as early as 1792. See Thomas Rogers Hunter, The First Gerrymander?: Patrick Henry, James Madison, James Monroe, and Virginia’s 1788 Congressional Districting, 9 Early Am. Stud. 781, 819 (2011) (discussing a 1792 map that “severely overpopulated” congressional districts in the northeast corner of the state).

[30] Common Cause, slip op. at 341.

[31] Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 4:40 PM), https://twitter.com/JeffJacksonNC/status/1168987115637682176.

[32] Graig Meyer (@GraigMeyer), Twitter (Sep. 3, 2019, 4:44 PM), https://twitter.com/GraigMeyer/status/1168988126200705026.

[33] Nick Ochsner (@NickOchsnerWBTV), Twitter (Sep. 3, 2019, 5:27 PM), https://twitter.com/NickOchsnerWBTV/status/1168998919885508608.

[34] See Rick Hasen, North Carolina Republicans Won’t Appeal Gerrymandering Ruling, Promise “Nonpartisan” Map. What’s the End Game?, Election L. Blog (Sep. 3, 2019, 3:13 PM), https://electionlawblog.org/?p=107179.

[35] See Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 7:03 PM), https://twitter.com/JeffJacksonNC/status/1169023123938824194 (“With fair maps, we have a genuine shot at electing a state legislature that actually reflects the political will of our state.”).

[36] Common Cause, slip op. at 233.

[37] See, e.g., Matthew Yglesias, The 2018 Electorate Was Older, Whiter, and Better Educated Than in 2016, Vox (Nov. 12, 2018, 10:00 AM), https://www.vox.com/policy-and-politics/2018/11/12/18083014/2018-election-results-turnout

[38] Common Cause, slip op. at 153.

[39] Id. at 157–58.

[40] Id. at 161–64.

[41] Id. at 164–69.

[42] Id. at 170–75.

[43] Id. at 181–85.

[44] Id. at 194–99.

[45] Id. at 199–203.

[46] Id. at 203–08.

[47] Id. at 209–15.

[48] Id. at 109–17.

[49] Id. at 117–23.

By Matt Deorocki

As the 2020 census and election cycle draws ever closer, some North Carolinians are looking to the state’s court system to provide guidance on the constitutionality of partisan gerrymandering in Common Cause v. Lewis. Since filing its original complaint on November 13, 2018, Common Cause, a non-profit, “nonpartisan democracy organization with over 1.2 million members and local organizers in 35 states” has sought a ruling striking down partisan gerrymandering within North Carolina’s state legislative districts.[1] While North Carolina has a rather illustrious history regarding gerrymandering, the state’s most recent controversies spur from what Common Cause defines as ill-intended Republican efforts in 2010 and 2017 to solidify power through partisan redistricting.[2]

Common Cause asserts that national Republican leaders targeted North Carolina in a concerted effort with the Republican State Leadership Committee (RSLC) to redraw North Carolina’s state congressional districts to ensure greater Republican representation.[3] Using a plan codenamed “REDMAP,” Common Cause claims that four Republican operatives, including the famed Republican strategist Thomas Hofeller, set forth redistricting maps in 2011 that were completely devoid of any committee or subcommittee influence from either branch of the state legislature[4] After passing party-line votes in the House and Senate, subsequent litigation was brought, ultimately leading to Republican leaders in the General Assembly admitting that “[p]olitical considerations played a significant role in the enacted plans and all alternatives.”[5]

Further challenges on Republican-drawn districts came into light in 2017. Ultimately, anti-gerrymandering enthusiasts emerged with a short-lived victory in Covington v. North Carolina, a case in which 19 House districts and 9 Senate districts were found to be in violation of the federal Equal Protection Clause due to racially motivated redistricting schemes. Nevertheless, victory was short-lived, as Republicans, including Hofeller, found themselves at the helm of remedial redistricting.[6] With racial gerrymandering violations fresh in the redistricting strategists’ minds, Hofeller and the redistricting committee set forth a 2017 plan seeking to maximize Republican partisan advantage.[7] In fact, Republican leaders in the General Assembly plainly admitted they were seeking to maximize Republican advantage. In relation to the similarly gerrymandered congressional map, one leader stated that he wanted to “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[8]

Accordingly, the main question in Common Cause v. Lewis is not whether North Carolina Republicans engaged in partisan gerrymandering, but whether partisan gerrymanders violate North Carolina’s Constitution. Given the United States Supreme Court’s recent ruling in Rucho v. Common Cause, a case regarding partisan gerrymandering in federal congressional districts, Common Cause is likely facing an uphill battle in Superior Court, North Carolina’s trial court.[9] In Rucho, the Supreme Court defined the scope of judicial action in partisan gerrymandering controversies, ultimately holding that “[P]artisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”[10] Despite indicating that “such gerrymandering is ‘incompatible with democratic principles,’” Chief Justice Roberts, writing for the 5-4 majority, gave the resounding answer: it’s not our job.[11]

Given this significant precedent, a key question remains: why is Common Cause getting a second chance? In reality, the United States Supreme Court’s overall ruling is binding on all courts interpreting the United States Constitution. In addition, The Supreme Court’s holding on justiciability likely binds any federal court interpreting a state constitution via supplemental jurisdiction. However, a North Carolina court may interpret North Carolina’s Constitution to provide greater rights than are seen in the United States Constitution because its holding would be based solely on state constitutional protections. Thus, because the North Carolina Superior Court has adequate and independent grounds under the North Carolina Constitution to evaluate partisan gerrymandering, Common Cause is free to launch its attack once again under the state constitution. Nevertheless, in order to overcome the significant persuasive authority set forth by the Supreme Court, Common Cause has honed in on three specific counts, each drawing light to “increased” protections held within North Carolina’s Constitution.[12]

Common Cause launched its attack by arguing that partisan gerrymandering violates North Carolina’s Equal Protection clause.[13] The basis of the argument relies on the clause, “[n]o person shall be denied the equal protection of the laws,” extending protection beyond that of the Federal Constitution.[14] While the clause has been interpreted to protect the right of “substantially equal voting power,” it is unclear whether the clause has applicability to partisan concerns.[15] Accordingly, Common Cause reasoned that the argument fits because Republicans purposefully diluted the voting power of Democrats, thereby making it “more difficult for Democratic candidates to be elected across the state, and . . . rendering it virtually impossible for the Democratic Party to achieve a majority of either chamber of the General Assembly.”[16] However, Common Cause’s argument should face significant skepticism, as Democrats are not a suspect class and are not entitled to increased judicial protections.

In their Post-Trial Brief filed August 7, 2019, Defendants in Common Cause v. Lewis addressed these accusations by reasoning that by delegating district map drawing to a political branch, the branch naturally could “consider partisan advantage and incumbency protection in the application of its discretionary redistricting decision.”[17] Furthermore, defendants returned an ill-willed jab stating: “Plaintiffs do not belong to a suspect class. Nor do they suffer an injury to ‘a constitutionally protected right to vote, and to have their votes counted.’ Instead, they complain of the political impact of district lines that will, in all events, have political consequences.”[18]

Given the Supreme Court’s refusal to act on equal protection grounds in Rucho, it would seem unlikely that a North Carolina Superior Court would take the opposite stand. Yet the three-judge panel appointed to hear the case is made up of two Democrats and one Republican, perhaps better odds than the 5-4 Supreme Court split.[19]

Common Cause also attacks Republican redistricting by claiming its partisan considerations violate the Free Elections Clause of the North Carolina Constitution, which provides “All elections shall be free.”[20] Despite this rather ambiguous language, Common Cause has supported its contention by arguing that on February 7, 2018, the Pennsylvania Supreme Court held that a partisan gerrymander of Pennsylvania congressional districts violated Art. I, Sec. 5 of the Pennsylvania Constitution, which provides for elections that are “free and equal.”[21] The Pennsylvania Supreme Court ultimately ruled that Pennsylvania’s Free and Equal Elections Clause requires voters to “have an equal opportunity to translate their votes into representation” and that said requirement is ultimately violated by “extraneous considerations such as gerrymandering for unfair partisan political advantage.”[22] As is easily done when arguing over semantics, the defense answered the attack by pointing to the notion that the Pennsylvania Constitution requires “free and equal” elections while the North Carolina Constitution merely indicates that elections must be “free.”[23] Accordingly, the defense articulates that there simply is nothing violating the North Carolina clause, as there is nothing impeding voting and each vote is being counted.

Finally, Common Cause argues that the Defendants have violated North Carolina’s Freedom of Assembly and Free Speech Clauses “by intentionally burdening the protected speech and/or expressive conduct of Plaintiffs and other Democratic voters, including members of Common Cause and the NCDP based on their identity, their viewpoints, and the content of their speech.”[24] However, the Defendants responded by stating that Plaintiffs’ viewpoints are not being restricted in any manner and there is no prohibition on speaking or associating with one another.[25] Here, it is likely that Common Cause has taken a more abstract view of speech and association by arguing that Republican redistricting techniques have deprived them of being able to assert the political philosophies in an adequate manner. Today, it remains uncertain whether such an argument can stand.

Given the Supreme Court’s ruling in Rucho v. Common Cause and North Carolina Constitution’s limited variance from the federal Constitution, I believe that a ruling in Common Cause’s favor is highly unlikely, despite the partisan makeup of the panel (two Democrats and one Republican). The persuasive authority of the United States Supreme Court may be a significant deterrent for any judge thinking about ruling in Common Cause’s favor. With the Supreme Court already ruling on a similar, albeit different constitution, North Carolina’s Superior Court could readily defer their opinion to the language expressed in Rucho, limiting their political liability. Either way, the Superior Court’s ruling will be short-lived, as the loser will surely appeal the case to the North Carolina Supreme Court in the immediate aftermath.


[1] Amended Complaint at 3, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] filed Dec. 7, 2018) [hereinafter Amended Complaint]

[2] Id. at 17

[3] Id.

[4] Id. at 19.

[5] Defendants-Appellees’ Brief on Remand at *16, Dickson v. Rucho, 781 S.E.2d 404 (N.C. 2015) (No. 201PA12-3), 2015 WL 4456364.

[6] Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017)

[7] Amended Complaint, supra note 1, at 28, (citing Covington, ECF No. 187-3 at 2)

[8] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[9] See Rucho v. Common Cause, No. 18-422 slip op. at 30 (U.S. June 27, 2019)

[10] Id.

[11] Id. (citing Arizona State Legislature, 576 U.S. at ____ (slip op., at 1)).

[12] Amended Complaint, supra note 1, at 67–74.

[13] Id. at 67.

[14] N.C. Const. art. I, § 19.

[15] Stephenson v. Bartlett, 562 S.E.2d 377, 394 (N.C. 2002)

[16] Amended Complaint, supra note 1, at 68.

[17] Defendant’s Post-Trial Brief at 4, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] (Aug. 7, 2019) [hereinafter Defendant’s Post-Trial Brief] (citing Stephenson v. Bartlett, 562 S.E.2d at 390 (N.C. 2002)).

[18] Id. at 7 (citing Reynolds v. Sims, 377 U.S. at 554–55 (1964)).

[19] Order, Common Cause v. Lewis, No. 18-cv-14001 (N.C. Super. Ct. [Wake] (Nov. 27, 2018); Kari Travis, In Common Cause v. Lewis, Courts Will Again Take on Partisan Gerrymandering. Carolina J. (July 15, 2019), https://www.carolinajournal.com/news-article/in-common-cause-v-lewis-courts-will-again-take-on-partisan-gerrymandering/.

[20] N.C. Const. art I, § 10.

[21] Pa. Const. art I, § 5; League of Women Voters v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[22] League of Women Voters, 178 A.3d at 814, 817.

[23] Defendant’s Post-Trial Brief, supra note 16 at 19 (citing Pa. Const. art I, § 5; N.C. Const. art I, § 10).

[24] Amended Complaint, supra note 1, at 72.

[25] Defendant’s Post-Trial Brief, supra note 16 at 19.

By Jordan Crews

Thursday, in Pisano v. Strach, the Fourth Circuit affirmed the district court, holding that North Carolina’s regulations on general elections ballots is constitutional.

Under North Carolina law, a new political party, in order to nominate candidates, must select its candidates by party convention and submit its nominees by July 1.  To qualify as a new party, the group must file petitions with the State Board of Elections on June 1 in the election year in which the group desires to participate.  A separate petition must be filed for each county in which the group gathers signatures.  The petitions must be signed by registered and qualified voters in North Carolina equal in number to two percent of the total number of voters who voted in the most recent election for Governor, with at least 200 signatures from each of at least four congressional districts.  A group must submit each petition for verification to the chairperson of the county board of elections in the county where the signatures were obtained by May 17.

Al Pisano, Nicholas Triplett, the North Carolina Constitution Party, and the North Carolina Green Party filed suit against the Director of the State Board of Elections, alleging that the May 17 deadline, together with the two percent signature requirement, violated the First and Fourteenth Amendments because it severely burdened their “ability to field presidential candidates.”  The district court granted the defendants’ motion for summary judgment and the plaintiffs appealed.

Election laws that impose a severe burden on ballot access are subject to strict scrutiny, and a court will uphold the restrictions only if they are “narrowly drawn to advance a state interest of compelling importance.”  However, “if a statute imposes only modest burdens, then a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.”

The Fourth Circuit found that the North Carolina law imposed only modest burdens, so strict scrutiny analysis was inappropriate.  The Court noted that the laws contained many alleviating factors.  The law does not limit groups to a short time frame for gathering signatures, and the Court emphasized that political groups are on notice of the number of signatures they need to collect three and a half years before the deadline, providing “ample opportunity to collect signatures when voters are engaged, such as during primaries and other elections.”  For these reasons, the Court concluded that the burden on the plaintiffs was modest.  As such, it declined to apply strict scrutiny.

Applying the lesser demanding test, the Court simply needed to “balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state’s interest in ensuring that order, rather than chaos, is to accompany the democratic processes.”  North Carolina’s “asserted regulatory interests need only be sufficiently weighty to justify the limitation imposed on the plaintiffs’ rights.”  The Court concluded that North Carolina’s May 17 deadline was reasonable.  The deadline falls after the state’s May primary and precedes other important deadlines, such as the counties’ June 1 deadline to verify signatures.  The state also requires qualifying new parties to select their nominees by party convention and submit their names by July 1.  Thus, the deadlines “permit the government to verify signatures and prepare the ballot before the November election.”  The Court found that the May 17 deadline outweighed the modest burden imposed on the plaintiffs, and so held that the deadline was constitutional.

The district court’s grant of summary judgment to the defendants’ was affirmed.