Editor’s Note: Since publication, the N&O has learned that passages from this story were taken in large part or in whole from “Supreme Court sidesteps decision on partisan gerrymandering in rulings on Wisconsin, Maryland cases” by the Washington Post without attribution. This is a violation of our standards. We apologize to our readers.
The U.S. Supreme Court sidestepped making a landmark ruling on Monday about when gerrymandering for partisan gain goes too far, leaving some legal analysts to speculate that North Carolina could have the next case to test that question.
The justices issued long-awaited rulings in Wisconsin and Maryland cases that could have had a profound stamp on legislative redistricting in the states and reshape American politics.
Instead, the justices sent both cases back to lower courts for further proceedings, a move largely described on social media as “a punt.”
That means the next case in the queue for the Supreme Court is the North Carolina lawsuit questioning whether the Republican-controlled General Assembly went too far in 2016 when it redrew the state’s 13 congressional districts in response to a court order.
A panel of federal judges ruled in January that North Carolina’s congressional districts were unconstitutional partisan gerrymanders, and an appeal awaits action by the Supreme Court.
Whether the court will set arguments for North Carolina in the fall or send the case back to the lower court to take note of the questions raised in the Wisconsin ruling is still uncertain.
That question could be answered this month in the closing weeks of the court’s session.
“It only takes four justices to move it forward,” said Justin Levitt, a law professor at Loyola Law School in Los Angeles who follows election law and redistricting cases. “North Carolina in some ways has one of the clearest cases of intent.”
In the case involving Wisconsin, where the challengers asked the court to consider the state as a whole, the ruling issued Monday said that the challenges must be brought district by district, with voters in each proving that their rights had been violated.
The Maryland case was sent back in an unsigned opinion that said the lower court hadn’t been wrong when it decided not to make the state redraw the maps in time for the 2018 election.
“Today’s opinions were largely procedural and indicate the Court’s desire to keep the door open for further discussion about partisan gerrymandering,” said Allison Riggs, senior voting rights attorney for the Southern Coalition For Social Justice. “Multiple statements in the opinions indicate that this practice, when it becomes egregious and discriminatory, crosses the line to become unconstitutional.”
The North Carolina lawsuit came after Rep. David Lewis, a Harnett County Republican who has shepherded the state’s recent redistricting efforts, announced that the congressional maps were drawn to give Republicans a large majority.
Lewis made his comments after the federal court found congressional districts drawn in 2011 to include unconstitutional racial gerrymanders. In announcing the new maps, Republican lawmakers stated that the race of voters would not be considered in the design of the new districts.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” Lewis said at the time.
At the time, the courts had allowed for some partisan consideration in redistricting, which happens every 10 years after the census shows population shifts.
But voting rights organizations have pushed for changes to that, saying modern mapmaking technology has allowed candidates for elected office to choose their voters — weakening the ability for voters to have a say in who makes laws and sets important policy.
Justice Anthony Kennedy, considered by many to be the swing vote on questions of partisan gerrymandering limits, asked a similar question last fall and earlier this year in the Wisconsin and Maryland cases.
He wanted the attorneys to explain whether, if a state had written into its constitution that it was OK to draw election districts for partisan gain, that would be constitutional.
“The North Carolina case is the most straightforward record for what Justice Kennedy has really been bothered by,” Levitt said.
“I can’t tell you what’s going to happen,” Levitt said. “Anybody who can is either Justice Kennedy or lying.”
North Carolina has been described as “one of the most gerrymandered states” in the country.
The case waiting in the wings was filed by Common Cause of North Carolina and the League of Women Voters.
“North Carolina remains the most crystal clear example of why a rule creating limits on partisan gerrymandering is so necessary,” Riggs said. “The record evidence of constitutional injury presented in our case is overwhelming — legislators intentionally cracked and packed millions of North Carolina voters to silence their political voice. We look forward to the opportunity to argue our case on the merits before the U.S. Supreme Court, where we do not have the same procedural issues that prevented a substantive ruling in the cases decided today.”
Chief Justice John G. Roberts Jr. wrote the majority opinion in the Wisconsin case.
When the case was argued last fall, Democratic voters used a mathematical formula to try to bolster their claims that Republicans in the statehouse redrew lines in 2011 with discriminatory intent. The formula, called the “efficiency gap,” counts the number of votes wasted when voters are shifted into districts where their votes won’t matter, either because their party’s candidate can’t win or is already sure to win.
When the Wisconsin case was argued at the high court in October, Roberts dismissed the concept as “sociological gobbledygook.”
“The answer is going to be because E.G. was greater than 7 percent, where E.G. is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes,” he said. “And the intelligent man on the street is going to say that’s a bunch of baloney.”
“This court is not responsible for vindicating generalized partisan preferences,” Roberts wrote in the ruling. “The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
The lawsuit was sent back to the lower court to see if the challengers wanted to modify it.
In a conference call with reporters on Monday, Paul Smith, a Campaign Legal Center attorney who represented the Wisconsin voters, said he thought they would be able to meet the standards outlined in the ruling.
Justice Elena Kagan wrote a concurring opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. That opinion offered what Smith described as “a roadmap” for how a partisan gerrymandering claim might proceed successfully.
The claims from voters in a partisan gerrymandering case must be district-specific, Kagan wrote, but courts can still step in to strike down a statewide map.
“[W]ith enough plaintiffs joined together — attacking all the packed and cracked districts in a statewide gerrymander — those obligatory revisions could amount to a wholesale restructuring of the State’s districting plan,” Kagan wrote in the concurring opinion.
Statewide challenge possible
Kagan also wrote that a political party or other group might be able to bring a statewide challenge to a partisan gerrymander on the theory that it violated the group’s First Amendment right to freedom of association.
Justices Clarence Thomas and Neil M. Gorsuch wrote that they would have simply ended the Wisconsin case, rather than giving plaintiffs another chance to prove their legal standing.
“While we are disappointed that the Supreme Court avoided establishing a standard against partisan gerrymandering today, its decisions underscore the continued need for reform,” said Tomas Lopez, executive director of Democracy North Carolina, an organization that advocates for voting rights. “North Carolina’s voting districts are some of the most distorted in the nation, and for too long politicians have used their partisan gamesmanship as a defense. We hope that the Court will ultimately adopt a standard that takes away that defense, and that our state reforms the redistricting process by taking it out of politicians’ hands and into those of their constituents.”
Guy-Uriel Charles, a Duke University law professor, and Rick Hasen, a law and political science professor at the University of California at Irvine who wrote about the rulings for Slate, both expect the North Carolina case to be sent back to the lower court to respond to Roberts’ questions about individual rights.
The federal judges who struck down North Carolina’s congressional districts — James A. Wynn, a Barack Obama appointee to the 4th U.S. Circuit Court of Appeals, and federal district judges W. Earl Britt, a Jimmy Carter appointee, and William L. Osteen Jr., a George W. Bush appointee — were unanimous that North Carolina lawmakers under Republican leadership violated the U.S. Constitution’s equal-protection clause when they drew maps explicitly to favor their party.
Wynn and Britt also found that the 2016 redistricting plan designed to give Republicans wins in 10 of the 13 districts also violated the free speech of the challengers by trying to weaken the voices of Democrats with whom they did not agree. Osteen dissented from his colleagues on that point, but agreed overall that the maps were unconstitutional.
“I think the North Carolina First Amendment case could work theoretically if Justice Kennedy would buy it,” Charles said.
But Charles and Hasen say Kennedy’s absence from the concurring opinion written by Kagan could mean that the swing justice might not be persuaded by an argument that only addresses the right to assemble and speak freely.
“If I’m a lawyer looking at these cases, I’m not optimistic about the line of inquiry that Kagan has laid out,” Charles said.
Roberts has made it clear, Charles noted, that he does not think the court should be “in the business of resolving partisan disputes.”
Charles said the best case for the North Carolina challengers would be to focus on the congressional districts in which voters used to be in a majority in their district and lawmakers divided it up, or “cracked it,” moving the voters into districts where their candidates of choice had no chance of winning election.
“The cracking claims are easier,” Charles said.