Ben Thorpe (left) and Emmet Bondurant, Bondurant Mixson Elmore, Atlanta. (Photo: John Disney) Ben Thorpe (left) and Emmet Bondurant of Bondurant Mixson Elmore, Atlanta. (Photo: John Disney)

For years, Atlanta attorney Emmet Bondurant looked for the perfect case on which to build a successful challenge to partisan gerrymandering.

He found the germ of it in a pro se complaint that originated in Maryland before landing in the lap of the U.S. Supreme Court in 2015. Bondurant is a founding partner of Atlanta’s Bondurant, Mixson & Elmore and a 50-year veteran of legal voting rights battles.

Bondurant said the Maryland case, Shapiro v. McManus, cited an argument first offered by Justice Anthony Kennedy in 2004—that partisan gerrymandering should be considered a violation of the First Amendment.

That argument now forms the core of Common Cause v. Rucho, a lawsuit challenging partisan gerrymandering by the North Carolina General Assembly.

Bondurant, who is lead counsel in the Common Cause case, and associate Ben Thorpe drafted the 2016 complaint filed in the U.S. District Court for the Middle District of North Carolina. The lawsuit was filed on behalf of Common Cause, a nonpartisan government watchdog organization, the North Carolina Democratic Party and disenfranchised Democratic voters in the state’s 13 congressional districts. The suit names Republican leaders of the North Carolina Legislature and state election officials as defendants.

“It was brought deliberately as a test case for partisan gerrymandering,” Bondurant said. “We picked North Carolina because the facts are very clear, very unambiguous and very egregious in every sense of the word.”

“It is a case in which the Supreme Court is not going to be able to duck the issue on any intellectually honest grounds,” he continued. “And they are finally going to have to rule on whether political gerrymandering is unconstitutional or not.”

Twice this year, Bondurant, Thorpe, co-counsel Edwin Speas Jr. of Raleigh law firm Poyner Spruill, and a team of attorneys from New York’s Patterson Belknap Webb & Tyler have won rulings from a three-judge panel finding the North Carolina Legislature’s 2016 redistricting plan constituted partisan gerrymandering in violation of the First Amendment, the Fourteenth Amendment’s equal protection clause, and Article I of the U.S. Constitution.

The North Carolina Department of Justice and a team of attorneys at Ogletree Deakins Nash Smoak & Stewart headed by Thomas Farr—whose controversial nomination to the federal bench was defeated last month—have directly appealed to the U.S. Supreme Court. The case is scheduled for consideration at the high court’s Jan. 4 conference.

Bondurant says the litigation, if successful, could ultimately prove as significant as Gray v. Sanders, the 1963 Supreme Court case originating in Georgia that codified “one person, one vote.”

Bondurant called Common Cause v. Rucho “a perfect test case.”

“There is no other case in which the state legislature is not trying to disguise their partisan purpose by having all this done in secret, and hiding it under attorney-client privilege and claims of legislative privilege,” he said. “This is the only case in history in which they [North Carolina Republican state legislators] laid out a legislative record precisely on what they intended to do, precisely how they intended to do it, and then did it.”

If the Supreme Court adopts Republican arguments that the courts have no jurisdiction because “they can’t get their robes caught in the political thorns, then you will be sending a message to partisan state legislators that anything goes. … The court will essentially be endorsing partisan gerrymandering, which I don’t think they are going to do,” Bondurant said.

Bondurant said that buried deep in Maryland engineer Stephen Shapiro’s pro se complaint was a theory first articulated by Kennedy in Vieth v. Jubelirer, a 2004 Pennsylvania political gerrymandering case. Although the court majority ruled the case was primarily a political question not appropriate for the courts, Kennedy suggested that partisan gerrymandering runs afoul of the First Amendment.

“He essentially said plaintiffs in future [political gerrymandering] cases would be better advised to bring these cases under the First Amendment, because these cases are a form of viewpoint discrimination,” Bondurant said.

In a dissent in that case, Justice John Paul Stevens echoed Kennedy’s tip of the hat to the First Amendment, Bondurant said. But no one paid attention until Shapiro.

A federal judge in Maryland tossed Shapiro’s complaint in 2014. Shapiro appealed, eventually joining forces with a Mayer Brown associate turned partner Michael Kimberly, who persuaded the U.S. Supreme Court to reinstate the case in 2015. Justice Antonin Scalia authored the 14-page opinion. On the last page, he took note of Kennedy’s 2004 opinion in Vieth, saying his colleague put forth a legal theory “uncontradicted by the majority in any of our cases.”

“Accordingly, the district judge should not have dismissed the claim as ‘constitutionally insubstantial,’” Scalia wrote.

Bondurant homed in on Kennedy’s suggestion and Scalia’s willingness to entertain it. He said it marked a new approach to partisan gerrymandering cases that traditionally have rested on equal protection arguments that have gotten little traction with federal courts.

Common Cause v. Rucho was tried before a three-judge panel in October 2017. The judges included James A. Wynn of the U.S. Court of Appeals for the Fourth Circuit, William Osteen Jr. of the Middle District of North Carolina and W. Earl Britt of the Eastern District of North Carolina.

Three months later, on Jan. 8, 2018, the panel issued a 205-page order written by Wynn concluding that North Carolina’s 2016 redistricting plan violated the equal protection clause, the First Amendment and Article I of the Constitution, and directed the Legislature to redraw the districts.

Wrote Wynn: “Partisan gerrymandering runs contrary to numerous fundamental democratic principles and individual rights enshrined in the Constitution. … The core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.”

State legislators immediately appealed. On June 25, the U.S. Supreme Court vacated the judgment, remanding the case for reconsideration in light of the high court’s June 18 ruling in Gill v. Whitford—a Wisconsin partisan gerrymandering challenge. On Aug. 27, the North Carolina panel handed down a 321-page ruling reiterating its earlier decision. In that opinion, the panel barred the state from using the 2016 redistricting plan in any election after Nov. 6.

“The Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties or candidates and disfavor others,” Wynn wrote in the panel’s second ruling. In particular, he said that Article I of the U.S. Constitution “preserves inviolate the right of ‘the People’ to elect their representatives, and therefore bars the states from enacting election regulations that ‘dictate electoral outcomes’ or ‘favor or disfavor a class of candidates.’”

The First Amendment prohibits election regulations that “restrict the speech of some elements of our society in order to enhance the relative voice of others,” Wynn added.

State legislators appealed a second time to the U.S. Supreme Court, and are awaiting a decision on whether the appeal will be heard.

Bondurant and Thorpe have taken heart from Justice Elena Kagan’s concurrence in Gill v. Whitford where she also focused on the First Amendment, a claim she said the Wisconsin plaintiffs did not advance “with sufficient clarity or concreteness to make it a real part of the case.”

Referencing Kennedy’s invocation of the First Amendment in Vieth, Kagan also suggested that partisan gerrymandering causes a separate harm to voters distinct from voter dilution issues raised by equal protection claims.

“By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions,” Kagan wrote. That, in turn, hampers “the ability of like-minded people across the state to affiliate in a political party and carry out that organization’s activities and objects.”

Thorpe said Kagan’s concurring opinion validates his team’s legal strategy.

“A lot of people read Justice Kagan’s concurring opinion as something of a roadmap going forward,” Thorpe said. “We think we’ve been on the road. And so, going forward with our appeal we’re optimistic that we can make the case.”