A pair of cases the Supreme Court will hear Monday could quietly hobble efforts to combat partisan gerrymandering — destroying, in the process, the Democratic Party’s hopes of undoing any legislation signed into law by President Trump.
America just witnessed its least democratic election since Southern black voters effectively gained the ability to vote in 1965. Hillary Clinton’s lead over Donald Trump now exceeds two-and-a-half million votes. It is likely that, when the final results are certified, Clinton will defeat Trump by more than two percentage points. Still, Trump will move into the White House in January.
It’s hardly the first time something like this happened in recent years. In 2012, Democratic House candidates won nearly 1.4 million more votes than their Republican counterparts. Yet Republicans won more than 30 seats more than Democrats in the House of Representatives, thanks to congressional districts that advantage the GOP.
Remember that government shutdown in 2013? It wouldn’t have happened if the Democratic majority that Americans voted for a year earlier had actually taken control of the House. Think on that for a second, and then think on how the 2016 election might have ended differently if President Obama had enjoyed a governing majority in Congress that would have enabled him to sign infrastructure legislation creating jobs for working class voters in Pennsylvania, Michigan, and Wisconsin.
The Democratic Party’s greatest enemy is geography. Liberal, cosmopolitan voters increasingly prefer to live in cities or other relatively dense areas, while Republicans spread out over rural and suburban areas. That’s why Hillary Clinton could lose the Electoral College while winning the popular vote by a decisive margin — too many Democrats in coastal cities and not enough in the Midwest. It’s also one of the two major reasons why Republicans can win the House even when they lose.
The other reason, of course, is gerrymandering. Thanks to the coincidence of Republicans having a particularly good year in 2010 — the election before a redistricting — the GOP was able to draw congressional maps in several key states which all-but-guarantee lopsided victories for Republicans in congressional and state legislative races even if Democrats perform well in the state as a whole. In 2012, for example, President Obama won Michigan by nearly 10 points, but Republicans captured 9 of 13 of the state’s House seats. Similarly, Obama won Virginia by 3 points but Republicans captured 8 members of the state’s 11 member House delegation.
Which brings us back to the two gerrymandering cases being heard by the Supreme Court.
Neither Bethune-Hill v. Virginia State Board of Elections, nor McCrory v. Harris involve explicit allegations of partisan gerrymandering. Rather, both allege racial gerrymandering — that black voters in Virginia and North Carolina were packed into a small number of districts where African Americans’ preferred candidate was already likely to win, thereby minimizing black voters’ ability to shape election results in other districts.
As a legal matter, the fact that both cases are framed as racial gerrymandering, rather than partisan gerrymandering, is quite significant. Although race often correlates with partisan affiliation, especially in the South, the Supreme Court has generally tolerated legislative maps that are drawn to advantage one party or the other, while simultaneously treating racial gerrymanders with much greater skepticism.
As a result, North Carolina’s brief defending its maps is an odd spectacle. It openly admits that the consultant hired by Republican lawmakers to draw the states congressional maps was instructed “to draw maps that were more favorable to Republican candidates.” And brags that “Republicans turned a 7–6 Democratic advantage” in the state’s congressional delegation “into a 9–4 Republican advantage” with the maps at issue in McCrory. The state, and its attorneys, apparently believe that the Court is so unconcerned about partisan gerrymanders that litigants can safely make such admissions in their briefs.
It’s a risky play. Although four conservative justices attempted to shut down suits challenging partisan gerrymanders in Vieth v. Jubelirer, Justice Anthony Kennedy wrote a separate concurring opinion leaving the door open to some plaintiff, someday succeeding in challenging such a map.
Kennedy’s frustration was that he did not believe that anyone had, as yet, identified a manageable standard courts could use to sort unacceptable partisan gerrymanders from maps that are more benign. Nevertheless, he wrote, “if workable standards do emerge . . . courts should be prepared to order relief.”
Nevertheless, there may be some method to North Carolina’s madness. If it can convince five justices to rule that state lawmakers are free to instruct mapmakers to give an advantage to one party or the other, then that is the end for legal challenges to partisan gerrymandering — and possibly the end of the Democratic Party’s hopes of recapturing the House, absent an extraordinary wave election.
That outcome — that is, an outright majority decision saying states can favor one party or the other with impunity — is unlikely. But Republicans could score a much more subtle, but still quite significant, victory in Bethune-Hill and McCrory.
In Bethune-Hill, a divided lower court essentially held that the plaintiffs’ racial gerrymandering claim must fail because Virginia’s maps aren’t ugly enough. The law governing racial gerrymandering claims, Judge Robert Payne wrote, “demands ‘actual conflict between traditional redistricting criteria and race that leads to the subordination of the former.’”
The key words here are “traditional redistricting criteria,” which refer to criteria such as whether districts are compact, geographically contiguous, and tend to group established communities together. Courts have suggested that these traditional criteria are desirable, and that maps which comply with them are more likely to be upheld. Judge Payne, however, went so far as to hold that a map that complies with these traditional criteria is largely immunized from challenge.
A legal standard that fetishizes things like compact districts would exacerbate the problem caused by Democrats sorting into population centers and Republicans remaining in more diffuse areas. Maps that cram city-dwellers into a few districts where their impact is minimized would fare well in the courts, while maps that attempted to correct for geographic sorting by drawing districts that encompassed both rural and urban areas would be subject to far greater skepticism.
Though Bethune-Hill is a case about racial gerrymandering, a Supreme Court decision embracing Judge Payne’s reasoning could cripple efforts to fight partisan gerrymandering. Given the close link between race and partisan affiliation, racial gerrymandering suits often have the added effect of shutting down partisan gerrymanders.
Moreover, should the Supreme Court ever settle on a legal standard that can be used to challenge partisan gerrymanders, something it may do soon thanks to a particularly promising case arising out of Wisconsin, that standard is likely to be influenced by the standard the Court already applies in racial gerrymandering cases. If compactness and similar criteria are incorporated into the new constitutional rule, that rule could have the perverse effect of entrenching Republican gerrymanders by preventing Democratic lawmakers from drawing maps that correct for the problem of geographic sorting.
In effect, the GOP’s chances of controlling the House and state legislatures would grow over time, as voters continued to sort. Democrats would be unable to govern, even when they won.