Let’s play a fun game together!
Let’s imagine that, back when all five Republican justices joined an opinion last June holding that “the people lose when the government is the one deciding which ideas should prevail” that they actually meant what they said in National Institute of Family and Life Advocates (NIFLA) v. Becerra.
Now, let’s imagine how a fair, non-partisan Court would apply its holding in NIFLA to a partisan gerrymandering case.
We’ll also pretend that this is a particularly egregious gerrymandering case. One where the state’s Republican-controlled legislature hired the Republican National Committee’s former redistricting coordinator to draw the state’s congressional maps. One where that mapmaker was instructed “to create as many districts as possible in which GOP candidates would be able to successfully compete for office.”
If you haven’t figured it out yet, we aren’t really playing a game of make-pretend. On Monday, a three-judge federal court held that North Carolina’s congressional maps are an unconstitutional partisan gerrymander.
Judge James Wynn’s opinion for two of the three judges on this panel is a masterpiece of trolling. Wynn cites Justice Clarence Thomas’ opinion in NIFLA four times. He constructs much of his opinion through citations to conservative campaign finance decisions such as Citizens United v. FEC. He even quotes two opinions by Supreme Court nominee Brett Kavanaugh.
Will Wynn’s opinion survive an appeal to the Supreme Court? Not if Kavanaugh is confirmed! But Wynn appears determined to expose the Court’s Republicans as a bunch of partisan hacks if they do reverse his decision.
Judge Wynn’s opinion is 294 pages long. It offers three separate arguments for why partisan gerrymanders violate the Constitution. It also spends dozens of pages going district-by-district through the state’s congressional map, often using color graphics to demonstrate how North Carolina’s Republicans drew district lines to “pack” Democratic voters into already-solid blue districts or “crack” them into Republican districts where their votes would be wasted.
The highlights of Wynn’s opinion, however, are his many quotes from and citations to First Amendment decisions championed by Republican members of the Supreme Court. “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 states early in his opinion. He then proves this statement by quoting statements from Republican judges like Chief Justice John Roberts, Thomas, and Kavanaugh.
“Those who govern should be the last people to help decide who should govern,” Wynn writes, quoting Roberts’ opinion in McCutcheon v. FEC, which held that rich donors can launder donations to candidates through committees set up by a political party.
“The First Amendment operates as a vital guarantee of democratic self-government,” Wynn proclaims, quoting an dissenting opinion by Judge Kavanaugh that would have declared net neutrality unconstitutional.
“‘The best test of truth is the power of the thought to get itself accepted in the competition of the market,’ Wynn writes, lifting from Justice Thomas’ opinion in NIFLA, which held that abortion providers enjoy fewer First Amendment rights than abortion opponents, “and the people lose when the government is the one deciding which ideas should prevail.”
Of course, in the end, the joke is likely to be on Judge Wynn. Kavanaugh will probably be confirmed by the Republican-controlled Senate, and Kavanaugh will almost certainly give Republicans the fifth vote they need to reverse Wynn’s opinion if he is confirmed.
But there is a bit of a twist here. Justice Anthony Kennedy retired from the Supreme Court on July 31, meaning that that the Court is now evenly divided between four Democrats and four Republicans. Wynn’s opinion, moreover, strongly implies that his court may order North Carolina to draw new maps for the 2018 election. If Wynn’s court ultimately orders new maps drawn, Republicans may not have enough votes on the Supreme Court to prevent that order from taking effect.
As election law expert Rick Hasen notes, there is some risk that Democratic Justices Stephen Breyer and Elena Kagan could decide that Wynn’s opinion came too close to this November’s election to permit such a swift redrawing of the state’s maps. It is also true that, the last time the Court had only eight members, Breyer gave the four Republicans a “courtesy” vote to stay a lower court decision allowing a young transgender man to use the men’s bathroom at his high school. It’s possible that Breyer will show similar “courtesy” here, potentially in a effort to extract some similar concession from Chief Justice Roberts at a future date.
But if Kavanaugh is not confirmed — or if Senate Democrats can merely delay his confirmation until the Supreme Court disposes of a request to stay Wynn’s opinion — then North Carolinians may actually be able to vote in a free and fair election this November.