Ned Barnett

NC case could slay the dragon of partisan gerrymandering

This 1812 political cartoon appeared in the Boston Gazette. It dramatizes the shape of a Massachusetts Senate district that was drawn to help elect candidates supportive of Gov. Elbridge Gerry, whose name gave rise to the term gerrymander.
This 1812 political cartoon appeared in the Boston Gazette. It dramatizes the shape of a Massachusetts Senate district that was drawn to help elect candidates supportive of Gov. Elbridge Gerry, whose name gave rise to the term gerrymander. Wikipedia Commons

Mourners gathered at St. Michael’s Episcopal Church in Raleigh late last month for a memorial service for Thomas B. Hofeller, a master of political mapping described as “the father, grandfather and great-grandfather” of modern gerrymandering.

It was fitting that Hofeller, a native Californian who was 75, retired to Raleigh and spent his final years here. For the state’s current political firmament is a monument to his work around the nation as a Republican redistricting expert. His shrewd computer-assisted mapping helped flip North Carolina’s U.S. House delegation from 7-6 Democratic to 10-3 Republican and fortified the GOP’s supermajorities in the state House and Senate.

But now, the electoral witchcraft Hofeller mastered and advanced – the partisan gerrymander – may be nearing its own end. Less than two weeks after Hofeller died from cancer on Aug. 16, a panel of three federal judges issued a 321-page ruling on Aug. 27 that found North Carolina’s congressional district maps to be illegally drawn for partisan purposes. The ruling represents the strongest argument yet against the line-drawing tactic that has warped election outcomes and polarized politics.

In the short term, the ruling adds confusion to a November election already clouded by court fights over whether proposed constitutional amendments will appear on the ballot and the party designation of a state Supreme Court candidate. But the temporary confusion is well worth it for the lasting relief this ruling could bring.

Republican legislative leaders who were defendants in the suit will appeal to the Supreme Court and seek a stay of the panel’s ruling pending the outcome of their appeal. But the appeal is the response wanted by the plaintiffs, Common Cause and The League of Women Voters. This a chance to turn the Republicans’ reckless political mischief in North Carolina into a Supreme Court ruling that could benefit the nation.

Previous attempts to outlaw partisan gerrymandering have failed because of the Supreme Court’s reluctance to referee state political fights. In addition, federal courts have accepted a degree of political advantage in redistricting as an edge victorious parties are entitled to.

But the Supreme Court has shown interest in blocking extreme partisan gerrymandering but has not been presented with an acceptable standard for measuring where a redistricting map goes too far. Chief Justice John Roberts dismissed a standard presented in a Wisconsin gerrymandering case last year as sociological gobbledygook”.

The North Carolina ruling, mostly written by Judge James A. Wynn Jr. of the 4th Circuit U.S. Court of Appeals, takes a clearer approach. It lays out a three-step test of whether a gerrymander violates the Constitution: Plaintiffs must “demonstrate (1) discriminatory intent, (2) discriminatory effects, and (3) a lack of justification for the discriminatory effects.”

Former state Sen. Bob Rucho, a co-chairman of the legislature’s redistricting effort and a defendant in the suit, dismissed the significance of the three-judge panel’s ruling.

“Judge Wynn’s decision on political gerrymandering has no legal precedent and will be thrown out by the US Supreme Court,” Rucho said in an email. “Just another example of judicial overreach which will disrupt the election and disenfranchise the voters.”

David Daley, a UNC-Chapel Hill graduate and author of “Ratf**ked: Why Your Vote Doesn’t Count,” sees it otherwise. He said the North Carolina ruling may win over a court skeptical about whether political gerrymandering – as opposed to racial gerrymandering – can be measured in a way that shows it violates the Constitution.

“Judge Wynn is clearly writing for an audience of one – Chief Justice John Roberts,” he said. “These metrics are not gobbledygook.”

But Daley speculated that if the three-judge panel orders the legislature to draw new maps, Hofeller may yet have an answer.

“He was really good at maps that look more normal, that break up fewer towns and counties but are just as partisan and just as advantageous for Republicans,” Daley said. “It wouldn’t surprise me at all if on a hard drive somewhere in Raleigh Tom Hofeller has another set of gifts for legislators.”

Barnett: 919-829-4512, nbarnett@newsobserver.com
  Comments