Court’s Gerrymandering Punt Looks to Land in North Carolina
Current House map was drawn by partisan greed, its author says. Is that unconstitutional?
When it sidestepped an opening to decide the future of partisan gerrymandering this week, the Supreme Court may have turned a tobacco grower and farm equipment dealer into one of the most important people in American politics.
The farmer and John Deere salesman, 47-year-old David Lewis, is also an influential state legislator who represents the rural geographic center of North Carolina — the state that will now be Ground Zero in the three-decadeslong debate over whether electoral boundaries can ever be drawn with so much partisan motivation that they’re unconstitutional.
The high court was asked to settle that question in cases about aggressive Republican mapmaking in Wisconsin and assertive Democratic cartography in Maryland. But on Tuesday the justices essentially set both cases aside for procedural reasons, with only the plaintiffs in Wisconsin afforded the opportunity to try again.
But waiting in the legal wings is another case, about North Carolina’s current congressional districts, which many legal experts maintain provides an even cleaner opportunity for the court to decide when, if ever, such maps are impermissibly configured by one party to assure their domination over the other.
The court could decide, as soon as the end of this month, whether to consider that case in its next term — which would immediately revive the possibility for a landmark decision that either underscores or undoes much of the embedded polarized partisanship in American elections.
And the outcome could hinge on what the justices think about three clear and candid sentences Lewis uttered 28 months ago.
Watch: The Many Ways to Draw a Gerrymander
Packing and cracking
In the Wisconsin case, Democratic voters presented a complex formula in seeking to prove their claim that Republicans had drawn discriminatory state Assembly boundaries. Dubbed “the efficiency gap,” it aimed to show how many ballots get squandered by one party’s voters in districts where their ballots have no influence — either because their candidate is certain to win (thanks to the district line drawing technique known as packing) or sure to lose (thanks to the opposite method, dubbed cracking).
Political scientists and some politicians were intrigued at the notion of an algorithm proving unconstitutionality, but at the October oral arguments Chief Justice John G. Roberts Jr. lambasted the concept as “sociological gobbledygook” and said “the intelligent man on the street is going to say that’s a bunch of baloney.”
It’s hard to imagine one of the justices using similar language to describe the central facts in the North Carolina case.
In early 2016, a federal court found that two House districts in the state were unconstitutional racial gerrymanders, because so many African-American voters had been packed in them that the power of the black vote had been suppressed elsewhere. The General Assembly set to work reconfiguring the map with Lewis in charge. When he unveiled his handiwork, he declared emphatically that has inspiration was all about disadvantaging Democrats and had nothing to do with disenfranchising people of color
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” he said.
“We want to make clear that we, to the extent are going to use political data in drawing this map — it is to gain partisan advantage on the map,” Lewis said. “I want that criteria to be clearly stated and understood.”
The map worked as he intended two years ago, even though North Carolina continued to rank among the most consistently purple states in the nation: Ten Republicans were elected to the House even though the overall GOP vote for Congress was just 53 percent, on a day when the state’s voters preferred Donald Trump for president but simultaneously chose Democrat Roy Cooper for governor.
But in January, a panel of three federal judges ruled that the map was “motivated by invidious partisan intent” and violated the 14th Amendment guarantee of equal protection. Two of the judges said it also violated the First Amendment free speech rights of Democratic voters because their opinions are different from the party in power.
“On its most fundamental level, partisan gerrymandering violates ‘the core principle … that the voters should choose their representatives, not the other way around,’” the majority opinion said.
It was the first time any federal court had found a congressional map to be unconstitutionally partisan. (Earlier this year, the Pennsylvania congressional map was redrawn, improving Democratic prospects in a handful of districts this fall, after the state Supreme Court ruled the boundaries set by the GOP-run legislature and used in the previous three elections violated the state constitution.)
Crossing the line
Under federal law, appeals from three-judge panels in voting cases such as North Carolina’s go directly to the Supreme Court, but the justices are not obligated to give them a full review.
One reason that might happen this time touches on the procedural issue that prompted the court’s punt of the Wisconsin case. The justices were unanimous in saying the plaintiffs lacked the standing to sue, because the few plaintiffs had not proved their voting power in their own districts had been diluted.
The court sent the case back to the lower courts to give the plaintiffs another shot at making that case, or altering their legal strategy in a way that would make their home towns irrelevant, but that process will take time. Meanwhile, though, the North Carolina case has plaintiffs from each of the 13 congressional districts, potentially overcoming the process problem that stalled the Wisconsin case.
The four justices in the court’s liberal bloc — Elena Kagan, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — wrote a concurring opinion suggesting the plaintiffs in North Carolina had a strategy for a partisan gerrymandering claim the court would consider.
“With enough plaintiffs joined together — attacking all the packed and cracked districts in a statewide gerrymander — those obligatory revisions could amount to a wholesale restructuring of the state’s districting plan,” Kagan wrote for the group.
Since ruling in 1986 that overly partisan gerrymandering could cross a constitutional line, the Supreme Court has never set a legal standard for where that line is, and at least three justices on the court now have signaled the view that such inherently political decisions as redistricting ought not be touched by the courts.
“North Carolina remains the most crystal clear example of why a rule creating limits on partisan gerrymandering is so necessary,” said Allison Riggs of the Southern Coalition for Social Justice, which is representing the plaintiffs in that state’s case. “The record evidence of constitutional injury presented in our case is overwhelming — legislators intentionally cracked and packed millions of North Carolina voters to silence their political voice. We look forward to the opportunity to argue our case on the merits before the U.S. Supreme Court, where we do not have the same procedural issues that prevented a substantive ruling” in the Wisconsin or Maryland disputes.
There is no way the North Carolina lines will be altered before the midterm, when the GOP is strongly favored to hold all 10 of its current seats. But if a big enough Democratic wave develops, two of the party’s candidates have a shot at takeaways: attorney and community activist Kathy Manning, who’s challenging Rep. Ted Budd’s bid for a second term in a district wedged between Winston-Salem and Charlotte, and Dan McCready, a solar energy entrepreneur and Marine veteran running against a former Baptist pastor, Mark Harris, who ousted Rep. Robert Pittenger in the GOP primary in a district linking the Charlotte suburbs to Fayetteville.
To be sure, when the state’s Democrats were in charge of redistricting at the start of the previous decade, they gerrymandered the House map for their benefit — and well enough, for example, that they secured seven of the 13 seats in the GOP takeover election of 2010, even though they took just 45 percent of the statewide congressional vote.