The Supreme Court just made it easier to get away with gerrymandering

If you can’t fix the problem quickly, it’s not fixed.

CREDIT: AP Photo/Patrick Semansky
CREDIT: AP Photo/Patrick Semansky

The Supreme Court handed down a brief order on Monday affirming a lower court’s ruling that North Carolina’s state legislative maps were an illegal racial gerrymander.

That sounds like good news for advocates who oppose the maps drawn by the Republican-controlled legislature — but the decision could actually encourage state lawmakers to attempt more gerrymandered maps in the future.

That’s because the most lasting effect of the Court’s decision in North Carolina v. Covington is likely to stem from a brief opinion vacating a lower court order that called for an unusual remedy to fix this gerrymander.

The lower court did not simply strike down the state’s legislative maps. It also ordered the state to draw new maps and hold a special election in 2017 to replace lawmakers elected under the illegal gerrymander.

It was an atypical order, but also a way of mitigating a recurrent problem in gerrymandering cases. The maps at issue in this case were drawn in 2011. The lower court order striking them down did not come until 2016. It’s now halfway through 2017, and the Supreme Court just got around to affirming that order. In the meantime, the state ran three elections under illegal maps.

The lower court’s order would have reduced the period when North Carolinians are governed by lawmakers chosen using illegal maps by a full year.

That outcome now looks quite unlikely. Though the Supreme Court’s decision in Covington does not prohibit courts from requiring special elections, it held they must jump through certain hoops before they may do so. Courts “must undertake an ‘equitable weighing process’ to select a fitting remedy for the legal violations it has identified,” the Court explained in an unsigned opinion.

“Although this Court has never addressed whether or when a special election may be a proper remedy for a racial gerrymander,” the Supreme Court’s opinion continues, “obvious considerations include the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty.”

Again, this language does not foreclose lower courts from ordering a special election, but it is likely to deter them from doing so. There were no noted dissents from the Supreme Court’s opinion in Covington. That’s how the justices communicate to other judges that they were annoyed with the lower court’s actions in this case.

Whether the justices intended it to or not, however, Covington will also send a clear message to lawmakers engaged in gerrymandering. North Carolina’s maps are illegal. The Supreme Court agreed with that conclusion. And yet North Carolina still got to run several elections under those maps.

That’s a pretty substantial incentive for lawmakers to draw more gerrymandered maps in the future.