Last Friday, attorneys representing a handful of North Carolina voters, along with the state Democratic Party and the group Common Cause, filed a lawsuit challenging North Carolina’s gerrymandered congressional districts. The allegations laid out in this lawsuit suggest that Republican lawmakers drew the state’s current maps without any fear that they could be held accountable for attempting to rig most of the state’s House races for the GOP.
Indeed, these lawmakers had good reason not to fear any consequences for their actions. The Supreme Court has thus-far refused to step in to prevent even the most aggressive partisan gerrymanders. Common Cause v. Rucho, the case filed on Friday, is a test of whether the justices can be convinced to make an exception to this practice when confronted with both an extraordinary gerrymander and extraordinary arrogance on the part of the lawmakers behind it.
Meet The New Maps
According to the complaint, prior to the most recent redistricting cycle, North Carolina had congressional maps that were fairly successful in electing a U.S. House delegation that mapped the preferences of the state as whole:
In 2011, however, Republicans gained control over both houses of the state legislature. They wielded that control to draw new maps that produced very different results:
So the new maps transformed a state where a party that won 51 percent of the vote was likely to receive reasonably close to 51 percent of the congressional seats into a state where Democrats could win over half the vote and Republicans would still control 9 of the state’s 13 districts.
Last February, a federal court ordered the state to redraw its maps, noting that lawmakers intentionally packed black voters into just two districts in an apparent effort to diminish their influence in the rest of the state. In an unusual move, the court also ordered the state to redraw these districts “within two weeks of the entry of this opinion to remedy the unconstitutional districts.”
“This Would Be a Political Gerrymander”
According to the complaint in Common Cause, North Carolina Republicans responded with an explicit and apologetically partisan plan to maintain the preexisting gerrymander. In response to the court decision, lawmakers formed a Joint Select Committee on Redistricting where Republicans outnumbered Democrats more than two to one. Rep. David Lewis (R), one of the co-chairs of this committee, announced his criteria in an open hearing — “to the extent possible, the map drawers [would be instructed] to create a map which is perhaps likely to elect ten Republicans and three Democrats.”
Lewis later said that he chose these numbers because “I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
In a party line vote, the committee then adopted redistricting criteria which provided that “the partisan makeup of the” preexisting maps “is 10 Republicans and 3 Democrats,” and that the committee would “make reasonable efforts to construct districts . . . to maintain the current partisan makeup of North Carolina’s congressional delegation.”
Rep. Lewis admitted that “this would be a political gerrymander,” but said that was fine because such a gerrymander “is not against the law.”
“Not Against The Law?”
He’s wrong about that. Partisan gerrymanders violate the First Amendment’s prohibition on viewpoint discrimination. They effectively give extra voting power to people who hold one viewpoint — in this case, the view that Republicans should govern — and strip power from people who hold a different viewpoint.
Yet, while the Supreme Court has never held that gerrymanders are legal, as Lewis suggests, the conservative Rehnquist and Roberts Courts refused to do anything about them, dismissing the problem of partisan gerrymandering as too difficult to solve.
Thirty years ago, in Davis v. Bandemer, the Supreme Court held that a partisan gerrymander may be struck down as unconstitutional upon proof of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Yet the Court struggled to determine where to draw the line between lawful and unlawful maps.
Nearly two decades later, in Vieth v. Jubelirer, the justices seemed even more confused. Four of them called upon federal courts to simply give up on solving the problem of partisan gerrymanders. Four others splintered into a maze of dissenting opinions, altogether proposing a total of three different standards for weighing alleged gerrymanders. In the middle, Justice Anthony Kennedy threw up his hands in frustration. “The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper,” Kennedy wrote. Nevertheless, he concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
So here we are today, with the right to be free of gerrymanders more a theoretical right than a real one. Justice Kennedy sent litigators off on an Arthurian quest to find the elusive “workable standard” that would allow him to separate every possible map into one of two piles marked “GERRYMANDER” and “NOT A GERRYMANDER.” And until this Holy Grail is found, obvious, explicit political gerrymanders like the one in North Carolina remain unmolested. Lawmakers like David Lewis appear to honestly believe that rigging elections is entirely legal.
It should be noted that at least one lawsuit, a challenge to Wisconsin’s gerrymandered state legislative maps, offers a promising solution to Kennedy’s dilemma. Common Cause, meanwhile, presents the courts with a more basic question: must any gerrymander be allowed to stand, and any amount of legislative arrogance be allowed to thrive, until someone hands Anthony Kennedy his grail?