In an era of deep partisan division, the Supreme Court could soon decide whether the drawing of electoral districts can be too political.
A dispute over Wisconsin’s Republican-drawn boundaries for the state legislature offers Democrats hope of cutting into GOP electoral majorities across the United States. Election law experts say the case is the best chance yet for the high court to put limits on what lawmakers may do to gain a partisan advantage in creating political district maps. Lawyers in North Carolina are watching the case to see what effect it might have on the state’s redistricting conflicts.
The justices could say as early as Monday whether they will intervene.
The Constitution requires states to redo their political maps to reflect population changes identified in the once-a-decade census.
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Both parties historically have sought partisan edge when they control redistricting. Yet Democrats are more supportive of having courts rein in extreme districting plans, mainly because Republicans control more legislatures and drew districts after the 2010 census that enhanced their advantage in those states and in the U.S. House of Representatives.
In the Wisconsin case, a federal court struck down the districts as unconstitutional in November, finding they were drawn to unfairly minimize the influence of Democratic voters.
The challengers to the Wisconsin districts say it is an extreme example of redistricting that has led to increasing polarization in American politics because so few districts are genuinely competitive between the parties. In these safe seats, incumbents tend to be more concerned about primary challengers, so they try to appeal mostly to their party’s base.
“If the court is not willing to draw a line here, it would suggest the court is unlikely ever to feel comfortable setting a limit,” said Richard Pildes, an election law expert at New York University’s law school.
Defenders of the Wisconsin plan argue that the election results it produced are similar to those under earlier court-drawn maps. They say the federal court overstepped its bounds and judges should stay out of an inherently political exercise.
The justices should correct the lower court’s “flawed analysis before it spreads to other jurisdictions and interferes with the states’ fundamental political responsibilities,” Texas Solicitor General Scott Keller wrote for 12 Republican-dominated states that are backing Wisconsin.
The issue has torn the court for decades. Some justices believe courts have no role to play in a matter best left to elected officials. Others say courts should step in.
The Supreme Court has never struck down districts because of unfair partisan advantage, although it has intervened frequently in disputes over race and redistricting over the past 50 years.
Similar lawsuits are pending in Maryland, where Democrats dominate, and North Carolina, where Republicans have a huge edge in the congressional delegation and the state legislature.
“The court is surely aware that this decade produced some of the most aggressive partisan gerrymandering in the modern era,” Pildes said.
North Carolina has three cases pending in federal court challenging the breadth to which lawmakers can draw districts for partisan gain. All three are focused on the state’s 13 congressional districts where Republicans hold 10 of 13 seats.
That advantage has held for the past six years since the Republican-led legislature redrew maps in 2011.
In 2010, Democrats held an eight-to-five advantage in the North Carolina congressional delegation.
Claims of racial and partisan gerrymandering are intertwined in the congressional district plans.
Two of the districts approved by lawmakers in 2011 – the 1st in the northeastern part of the state and the 12th, which stretched through the Piedmont – were found to be unconstitutional racial gerrymanders. The lawmakers packed too many African-American voters into the districts, weakening their overall influence in congressional elections, a panel of federal judges ruled in 2016, and new districts were drawn.
In the drawing of the 2016 congressional districts, Rep. David Lewis, a Republican from Harnett County who has been chairman of the redistricting committee, made a statement that has been used in lawsuits related to partisan gerrymandering claims.
While redrawing the congressional districts this past winter to satisfy a federal court order, Republican state lawmakers emphasized that the new lines were meant to keep Republicans in control of 10 seats in North Carolina’s delegation, leaving three seats for Democrats.
In 2016, Lewis said at a meeting that he wanted the maps drawn “to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
Common Cause and the League of Women Voters have filed separate lawsuits challenging the new maps as partisan gerrymanders, using some of the same legal arguments threaded throughout the Wisconsin case.
The Common Cause lawsuit highlights another comment Lewis made during the 2016 map drawing to try to ward off any attempt to overturn the districts as racial gerrymanders.
“I acknowledge freely that this would be a political gerrymander, which is not against the law,” Lewis said.
The lawsuits filed by Common Cause and the League of Women Voters are scheduled for a bench trial at the end of this month.
Meanwhile, the U.S. Supreme Court justices could be pondering arguments already before them over questions of political gerrymandering.
On June 6, attorneys responded to questions from the U.S. Supreme Court clerk of courts about whether the voters who brought the lawsuit challenging the 2011 maps as racial gerrymanders had standing to challenge the 2016 maps as political gerrymanders.
Attorneys for N.C. lawmakers who led the drawing of maps argued no, that the initial case focused on the racial gerrymander claims and a panel of judges in a lower court had rejected their challenge that the 2016 maps not only were new illegal racial gerrymanders, but also partisan gerrymanders, too.
In their 8-page order the judges said “hands appear to be tied” given the lack of a judicial standard to evaluate partisan gerrymandering claims. The panel stressed, though, that its ruling was not an endorsement of, nor did it prevent further challenges to, the state’s remedial plan.
The challengers have continued to push their argument at the U.S. Supreme Court.
“The General Assembly’s bald partisan gerrymander is part of what can only be described as an ongoing assault on representative democracy in North Carolina by an entrenched majority in the General Assembly,” Marc Elias, a Washington-based attorney representing the challengers responded to the clerk’s query.
Gauging partisan advantage
The Wisconsin case seems promising because the lower court said it found a way to measure the partisan nature of the districts. The court adopted an equation offered by the challengers that essentially measures and compares each party’s wasted votes – those going to the winner in excess of what’s needed for victory – in an election. Republicans might stuff Democratic voters into Democratic districts, leaving other districts with Republican majorities that are essentially just large enough to elect GOP candidates.
This “efficiency gap” identifies districting plans that are likely to accentuate one party’s control over the 10-year life of the plans, said Eric McGhee, a research fellow at the Public Policy Institute of California who helped develop the measurement.
Wisconsin Republicans drew the maps in 2011 after they took full control of state government in the 2010 elections. Under those maps in 2012, Republicans captured 61 percent of state assembly seats while winning 48.6 percent of the statewide vote. They now have their largest majorities in the state House and Senate in decades.
Republicans argue they are successful because they run better candidates in a state that is trending Republican. They also say they have a natural edge in redistricting, since Democrats tend to cluster in cities and suburbs, creating districts that overwhelmingly vote Democratic.
Staff writer Anne Blythe contributed to this report