The U.S. Supreme Court convened Friday in a closed-door session to discuss whether it should hear arguments in North Carolina’s partisan gerrymandering cases. For years, the court has refused to address the deeply polarizing issue, deferring to lower court rulings on a practice which has allowed states to draw district lines in favor of the dominant political party.
A Supreme Court decision here could radically reform American elections, changing the composition of state and federal legislatures and altering the political course of the country for generations to come.
Crucial court decision
Given the consequences, the high court has so far been unwilling to address the issue of redistricting, sending cases from Maryland and Wisconsin back to lower courts for adjudication in 2017. Unlike racial gerrymandering, where districts are redrawn to weaken the voting power of minorities, political gerrymandering is seen as an inherently partisan process, explaining why many judges are reluctant to get involved.
In the Wisconsin case, the Supreme Court refused to examine the specific merits of gerrymandering and ruled unanimously that the plaintiffs failed to establish “concrete and particularized injuries” necessary to bring the case. However, in her concurring opinion, Justice Elena Kagan left open the possibility for reform, writing:
Courts — and in particular this court — will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.
A house divided
Liberal and conservative justices have traditionally taken opposing sides over the issue of extreme partisan gerrymandering. Kagan, who was appointed by President Barack Obama, argues that the judiciary has jurisdiction to rule on a practice which she believes “enables politicians to entrench themselves in power against the people’s will.”
Kagan’s concerns are justified. Since the 2000 census, Republicans have successfully reconfigured their state legislative and congressional districts along lines that benefit the GOP.
In North Carolina, for instance, state Rep. David Lewis co-chaired a meeting of the Joint Select Committee on Congressional Redistricting in 2016 and said, “I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats.” Although the statewide vote in 2016 was nearly tied, Republicans ended up winning precisely 10 seats, as Lewis predicted.
In response, voting rights groups sued, and a three-judge district court panel sided with the plaintiffs, deciding in August that North Carolina voters had the legal right to bring claims that the redistricting violated the Constitution. The district court ruled that North Carolina’s General Assembly “deprived Democratic voters of their ‘natural political strength’ by making it difficult for such voters to raise money, attract strong candidates and motivate fellow party members and independent voters to campaign and vote.”
However, it’s not just Republicans who are redrawing electoral boundaries to benefit their constituents. In Maryland, where Democrats have long maintained control of the state legislature, Gov. Martin O’Malley admitted in a signed deposition that the state “set out to draw the borders in a way that was favorable to the Democratic party.”
In fact, a federal panel of judges determined that Maryland Democrats intentionally configured congressional lines in 2011 to erase a seat held for years by Republican Roscoe Bartlett.
Old problems, modern solutions
Conservative justices have been dismissive of the judiciary’s responsibility to address gerrymandering. In a 2003 decision addressing the issue, the late Justice Antonin Scalia argued that political redistricting has been a problem since the early years of the Republic, and it would be inappropriate for the Supreme Court to intrude on this process.
“Political gerrymanders are not new to the American scene,” Scalia wrote. “In 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name — an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (‘salamander’) which the outline of an election district he was credited with forming was thought to resemble.”
Justice Anthony M. Kennedy was considered the passionate conservative who would dissent from his colleagues, although he never offered a workable solution to gerrymandering. “[T]he challenge in finding a manageable standard for assessing burdens on representational rights has long been recognized,” Kennedy wrote in a Pennsylvania case in 2004.
Kennedy’s replacement, Justice Brett Kavanaugh, has not ruled on the subject. Rick Hasen, an election law expert at the University of California, Irvine, believes Kavanaugh will fall in line with other conservative justices. “But his overall judicial philosophy suggests he’s likely to join with other conservatives and hold that courts have no business policing the political drawing of lines under the U.S. Constitution,” he said.
If the high court chooses not take up the issue of extreme political gerrymandering following Friday’s private conference, it may be left to the states to resolve the issue. Several states currently rely upon nonpartisan committees to draw their congressional districts, and with the 2020 census fast approaching, this may be the most prudent solution to a problem as old as the Union itself.
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