U.S. Supreme Court Justice Elena Kagan was commenting Monday on the court’s consideration of North Carolina’s congressional redistricting and whether it was driven by racial gerrymandering. “Is it politics or is it race?” she asked. “If it’s politics, it’s fine. If it’s race, it’s not.”
Sadly, the outcome of this appeal of a federal court ruling against the state’s districts may come down to that question. But it should not.
Oh, it’s clear that GOP legislators intended to pack African-Americans into a couple of majority-black congressional districts, to give themselves advantages in others dominated by white voting majorities. And it worked, of course, with Republicans holding 10 of 13 congressional seats despite a fairly even split among Democrats, Republicans and unaffiliated voters.
But throughout the long, winding and expensive fight over the districts, the same political mantra has kept coming up: The parties that control redistricting are allowed to use partisanship in the drawing of districts. It has long been accepted that both Democrats and Republicans have done so when they’ve been in power following a Census, which is when districts must be redrawn.
The no-no, as Kagan noted, is when race is the determining factor, which the courts have ruled unconstitutional. But the partisan divide has grown extreme, and in many states, a party in power has not been subtle in drawing lines that are designed to give one party not only an advantage, but an overwhelming advantage.
Except, that is, in the 21 states that use a bipartisan or nonpartisan commission to draw new district lines. That encourages political parties to be less extreme and more prone to compromise when they haven’t guaranteed themselves re-election with gerrymandered districts. And that, in turn, makes the legislative process more even-handed and representative.
The Supreme Court, currently divided 4-4 among liberals and conservatives, will, one hopes, one day confront the ever-more-damaging issue of partisan redistricting. Common Cause, the state Democratic Party and others have filed a federal lawsuit in North Carolina that could lead the Supreme Court to assess the way partisan redistricting undermines the goal of fair representation.
It’s time for all states to have independent commissions for redistricting. That way best serves the public, the states and democracy.
Kagan’s statement may reflect the reality of redistricting as it stands, but the extreme partisanship that now dominates the process in most states means playing politics with district lines it is no longer “fine.”