In 2010, Republicans in North Carolina won control of the state legislature and proceeded to draw the maps for the North Carolina local districts and congressional districts as required for the national decennial census. The maps were drawn to give an advantage to Republican candidates in the state. In 2016, the maps drawn in 2011 were declared unconstitutional as a racial gerrymander and struck down by the Supreme Court in Cooper v. Harris. The state congressional maps were ordered redrawn but another court challenge was brought, but this time on the grounds of a partisan gerrymander. Partisan gerrymandering is when districts are drawn to give an advantage to members of a political party over another party.
In 2010 in Maryland, the state legislature drew a state congressional map that resulted in Maryland’s 6th Congressional District essentially being drawn in a way that would favor Democratic candidates over Republican candidates for the foreseeable future. A legal challenge was brought and in 2018 a three judge federal court panel ruled Maryland’s state congressional map as drawn was an unconstitutional partisan gerrymander. The case was appealed to the U.S. Supreme Court which agreed to hear the case as well as the case from North Carolina. Oral arguments for both cases were heard in March 2019 before the high court. LEARN MORE, LEARN MORE, LEARN MORE
The big issue to be resolved before the U.S. Supreme Court is whether problems of partisan gerrymandering should be heard by the Supreme Court (and courts, in general) at all, and if so, if there is a workable legal standard that can be used to review partisan gerrymandering claims. The oral arguments on the two cases before the justices are instructive in this matter because it revealed how the justices might rule. While no one doubts that drawing state and congressional districts is problematic because of the potential for abuse and manipulation by the political party in power, there appears to be no clear consensus on how to fix the problem. The two most recent appointments to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh, both pointed out that there are other options to pursue other than through the courts – state independent redistricting commissions, state Supreme Courts and state legislatures. This would seem to indicate that the conservative voting bloc on the court might instead prefer to leave the problem of gerrymandering to the political process to solve. This approach would probably leave voters with very limited options to solve the problems through the court system.
However, Alison Riggs of the League of Women Voters of North Carolina made an impassioned plea for judicial relief at oral argument when she said, ” We’re looking for situations where the parties are being treated differently and there’s a severe and long-lasting discriminatory effect on a disfavored party.” Justice Elena Kagan also pointed out that the focus should be on the “worst of the worst” violators who are manipulating the way maps are drawn. These two statements illustrates from a more liberal view that while not every unfavorable map should be deemed an unconstitutional gerrymander that there should at least be a limiting test that reins in the most egregious violators of gerrymandering as seen in the North Carolina and Maryland cases before the court now. Ms. Riggs even suggested a vote dilution test that could be used in the most extreme cases and one which would be used in the future.
There is no way to predict with precision how the court will rule in these cases but it appears the lines have been drawn. The conservative bloc on the court seems to prefer that voters address the issues directly with representatives in their individual states and to leave it as a political issue where courts will not get involved. On the other side are those who simply want to put a stop to the most extreme situations of gerrymandering that results in “long – lasting discriminatory effects on a disfavored party.” An answer will not come until sometime this summer but it does speak to the urgent nature of this issue that prominent Republican and Democratic politicians came together to urge the court to find a way to limit the abuses of partisan gerrymandering. It is now up to the Court to see if they can fashion a solution to a centuries long uniquely American problem. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE
Update: On April 24, 2019 a federal court presided by a three judge panel in Michigan issued a ruling that said that the state’s Republican controlled legislature unfairly drew some of the state’s legislative and congressional representative maps. The court held that 27 of the 34 challenged state districts diluted people’s votes and that all of the challenged districts were unconstitutional partisan gerrymanders in violation of the First and Fourteenth Amendments to the U.S. Constitution. On May 3, 2019, a federal court in Ohio threw out Ohio’s own congressional map on the same grounds stating that Republican lawmakers in the state drew the map to give themselves an illegal partisan advantage as well as ensuring that elections in the district would be pre – determined in Republican candidates favor.
These two cases are similar to the Maryland and North Carolina cases that the Supreme Court heard oral arguments for back in March. It also signals that partisan gerrymandering cases have become a hot button issue around the country as other states have also grappled with the problem – Pennsylvania along with the four other states mentioned. The Michigan case is noteworthy because of what the judges – both Republican and Democratic appointees – said in the ruling. In a rare departure, the three judges in the case sent a pointed message aimed at the Supreme Court and the current gerrymandering cases pending before the High Court. In a lengthy opinion by U.S. Circuit Judge Eric Clay he said, “Federal courts must not abdicate their responsibility to protect American voters from this unconstitutional and pernicious practice that undermines our democracy.” This statement was a clear signal to the Supreme Court and Justice Neil Gorsuch that simply leaving the process of drawing state district maps to the political process was not enough. Furthermore, Judge Clay went on to say ““Federal courts’ failure to protect marginalized voters’ constitutional rights will only increase the citizenry’s growing disenchantment with, and disillusionment in, our democracy, further weaken our democratic institutions, and threaten the credibility of the judicial branch.” By mentioning these harms and the long – lasting consequences that would likely happen if the Supreme Court chooses to do nothing with the Maryland and North Carolina cases, Judge Clay squarely put the ball in the Supreme Court’s hands. It was a clear message to the court to not look away simply because of right leaning political viewpoints. And in the Ohio case, the judges took the time to emphasize that their ruling was based on a three – pronged test which had also been used in the lower court rulings from the North Carolina and Maryland cases. The test asked whether the drafters of the maps intended to hobble their opponents, whether they succeeded and if there was another reason why the maps could have been drawn then the way they eventually were drawn. The judges concluded that the Republican drawn state maps failed all prongs of the test. What this means in the long term is that it undercuts Justice Gorsuch’s argument that this is a political problem that should be solved at the state legislature level. If four cases from four different states can utilize a judicial test to declare maps unconstitutional, then there can be a role for the judiciary to police this problem and determine the constitutional limits of partisan gerrymandering.
On May 2, 2019, Republican legislators in the Michigan State Legislature appealed the trial court ruling to the Supreme Court. The case will likely be consolidated with Rucho v. Common Cause and Lamone v. Banisek (the North Carolina and Maryland partisan gerrymandering cases now pending before the Supreme Court) with a decision issued sometime this summer. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE
- Common Cause – non – profit group’s webpage on gerrymandering and work on Rucho v. Common Cause Supreme Court gerrymandering case.
- Brennan Center for Justice – non – profit group’s webpage on redistricting and gerrymandering issues.