Voting rights groups say they will continue to fight extreme partisan gerrymandering despite Thursday’s Supreme Court ruling that such cases are not a matter for the federal courts.
The decision — which centered on political gerrymandering cases in North Carolina and Maryland — was a major blow to groups pushing for an end to politically drawn legislative and congressional maps.
“The battle continues. There are other options for us,” said attorney Allison Riggs, who argued the North Carolina case on behalf of the League of Women Voters of North Carolina. “We need to stay angry about this and recognize that this was a very anti-democratic outcome and we don’t have to just accept it.”
Since the 2011 redistricting process, challenges to partisan maps have been lodged in federal courts in a number of states, including Maryland, North Carolina, Michigan, Ohio, and Wisconsin.
In the wake of the Supreme Court ruling, several groups said they would continue challenging unfair maps through the state courts and pushing for state and federal measures that would create independent commissions to draw the maps rather than partisan legislatures.
Meanwhile one Democratic group, led by former Attorney General Eric Holder, is focused on electing party officials who can stop the practice when district lines are redrawn in 2021.
Riggs said in a conference call Thursday that while the high court was essentially “rubber-stamping” the actions of extreme partisans, it is important that people “not lose heart” and continue to fight.
“Our democracy depends on us picking ourselves up, brushing ourselves off and fighting again,” said Riggs, senior voting rights attorney at the Southern Coalition for Social Justice.
That battle is important. Partisan gerrymandering allowed Republicans to gain a stranglehold on state legislatures in Ohio, Michigan, Wisconsin, North Carolina, and Texas, and helped elect far-right Freedom Caucus conspiracy theorists like U.S. Reps. Mark Meadows (R-NC) and Jim Jordan (R-OH).
As Justice Elena Kagan wrote in her powerful dissent:
“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process.
She continued: “Of all the times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
Despite Thursday’s setback, progress has been made to end gerrymandering in recent years.
During the 2018 midterm elections, voters in Colorado, Michigan, and Utah passed ballot initiatives that took the redistricting process out of the hands of state legislatures. These bodies often draw election maps behind closed doors, and efforts are underway to put the process under the control of non-partisan or bipartisan commissions that more public. Seven other states already utilize a redistricting commission system for both congressional and legislative district lines.
At the federal level, House Democrats this year passed H.R. 1, which would require that all states use independent commissions comprised of five Democrats, five Republicans and five independents to create fair maps. That bill has essentially no chance of passing in the Republican-controlled Senate.
“Those laws would create greater transparency and political impartiality and create some kind of check on the current process that essentially allowed political operatives and partisans to run without any countering balances,” said Kathay Feng, national redistricting director at the government watchdog group, Common Cause.
The Supreme Court decision left room for groups to challenge partisan gerrymandering cases in state courts. Common Cause is challenging North Carolina’s partisan maps through a separate case through the state courts.
“Nothing that the Court said today precludes state courts from stepping in and we’ll put together a plan for bringing appropriate challenges to gerrymandering in state courts and we’ll look at that as the new front going forward,” said Michael Kimberly, an attorney who argued on behalf of seven Republicans during the Maryland case.
Racial gerrymandering cases are also ongoing in Alabama, Georgia, Louisiana, and Mississippi, and they can also be challenged in the federal courts, despite Thursday’s ruling. Common Cause obtained documents from the files of now-deceased GOP gerrymandering mastermind Thomas Hofeller that showed North Carolina Republicans factored in race when drawing its gerrymandered maps in 2011.
In the light of the Supreme Court decision, however, Riggs said legislators drawing the maps will now use partisanship as a “cloak” for racism when defending gerrymandering in the courts.
One way to stop gerrymandering is by electing officials that will draw fair maps or create a check on the process. Holder’s National Democratic Redistricting Committee hopes to make that possible in districts across the United States.
Besides fighting racial gerrymandering cases in court, Holder’s organization is trying to give Democrats some power in states where Republicans currently control both legislative branches and the governor’s office and have complete control over the redistricting process.
There has been some progress. Over the past two years, Democrats have retaken governors’ seats in Colorado, Maine, Michigan, Minnesota, Nevada, Pennsylvania, Wisconsin, and Virginia. And last November, Holder’s organization helped flip legislative chambers in Colorado, Maine, Minnesota, New Hampshire, and New York.
During the 2020 election, the organization is targeting gubernatorial and legislative races in Texas, Florida, Georgia, North Carolina, and Ohio, officials said.
“Today’s Supreme Court decision to allow partisan gerrymandering tears at the fabric of our democracy and puts the interests of the established few above the many,” Holder said in a statement, likening Thursday’s Supreme Court setback to the high court’s 2010 Citizens United decision, which allowed unlimited money in the electoral system, and its 2013 Shelby County decision, which gutted the Voting Rights Act.
“History,” said Holder, “will not be kind in its assessment of the ways in which this court has undermined voting rights and core democratic principles in America.”