In a week of horror over the Las Vegas massacre, there came a glimmer of hope that Americans may yet be able to reach political agreement on gun control and other intractable issues. It happened on Tuesday when the U.S. Supreme Court heard a case from Wisconsin, Gill v. Whitford, challenging the constitutionality of extreme partisan gerrymandering.
The court has taken up gerrymandering before, but those were cases centered on racial discrimination or a lack proportionality. This case turns on whether a state legislature’s majority party can warp the electoral maps to ensure it stays in power, even if it loses the support of a clear majority of voters.
This is a profound case for an American democracy that has become polarized largely by gerrymandering. As congressional districts are drawn safely Republican or Democratic, representatives don’t worry about winning the general election. That’s assured. Instead they worry about facing a primary. That worry pushes lawmakers toward the extremes. It also thwarts the popular will. Gerrymandering is the reason Congress doesn’t act to stem gun violence, raise the minimum wage, revise the Voting Rights Act, improve the Affordable Care Act or ease the burden of student loan debt.
N.C. seats flipped
The importance of this case is especially clear to North Carolina voters. When Republicans took control of the General Assembly in 2011, they engaged in extreme gerrymandering with the help of computers that gave the maps’ partisan edge an unprecedented sharpness. Under the GOP’s maps, the state’s congressional delegation flipped from 7-6 Democratic to 10-3 Republican. In the state House and Senate, Republicans locked themselves in veto-proof majorities. They were so enamored of drawing themselves into power they even reached down to redraw some local government districts, including Wake County’s.
Courts have ruled the North Carolina congressional and legislative redistricting maps illegal on grounds that they unfairly dilute the voting power of African-Americans. But race-based challenges are limited and harder to win. If the Supreme Court rules against partisan gerrymandering, it will put a stake through the heart of a practice that abuses the democratic process and corrodes faith in democracy.
Common Cause, Democrats sue
Should the Wisconsin challenge fail, another has been filed in North Carolina. Common Cause and the N.C. Democratic Party filed a federal lawsuit in 2016 challenging the constitutionality of partisan redistricting. The suit quotes State Rep. David Lewis, co-chairman of the General Assembly’s redistricting committees, when he baldly admitted that the maps were drawn to give Republicans the maximum advantage at the polls.
“We want to make clear that we … are going to use political data in drawing this map,” he said. “It is to gain partisan advantage on the map.” Lewis also said they were drawing a map to elect 10 congressional Republicans and three Democrats only “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
Lewis was candid because the courts have considered partisanship as a matter for the legislature, not the judiciary. But that was before computers allowed for such effective and extreme gerrymandering.
The lawsuit challenging the North Carolina congressional districts claims that Republicans behind the maps were trying to quiet the free speech of voters who disagreed with them, a different legal theory than being tested in the Wisconsin case.
The Wisconsin lawsuit proposes a mathematical formula for assessing when gerrymandering has too strong an effect on election results. Chief Justice John Roberts said Tuesday that accepting the formula would make the court appear too political as it weighed the legitimacy of elections.
Roberts’ objection is simply an effort to stay out of a political fray in which the court offers the only hope of resolution. The court’s first duty is to protect and uphold the Constitution and that document will be drained of value if the democratic process is drained of democracy.