Back in June, the U.S. Supreme Court barred the federal courthouse doors to partisan political gerrymandering claims. SCOTUS Watch: partisan gerrymandering is ‘non-justiciable,’ and Census case is remanded to Commerce Dept.:
In a 5-4 decision by Chief Justice John Roberts, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, the conservative majority holds that partisan gerrymandering claims present a political question beyond the reach of the federal courts, and therefore are non-justiciable. Rucho v. Common Cause (.pdf).
The court holds that none of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable — e.g., there’s not a good test to use to decide them. From the end of the majority opinion: “No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.”
Toward the end of his opinion, Roberts acknowledges that “excessive partisanship in districting leads to results that reasonably seem unjust.” But that does not mean, he says, that “the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Roberts says the states can pass laws to deal with partisan gerrymandering, and so can Congress.
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State constitutional law or amendments — by referendums or initiatives — would be one way to address this problem of partisan gerrymandering, and is an open avenue that the Chief Justice suggests. State courts could still adjudicate partisan gerrymandering claims under state constitutions, as the state Supreme Court of Pennsylvania has done. (These decisions are not reviewable by the federal courts). I would expect all the action on partisan gerrymandering to now move to state legislatures, ballot measures, and the state courts in the next round of redistricting after the 2020 Census.
As I indicated, this is exactly what happened this week in North Carolina. Stephen Wolf at Daily Kos reports, Major victory against GOP gerrymandering: State court strikes down North Carolina’s legislative maps (h/t graphic):
On Tuesday, a three-judge panel delivered a major blow against Republican gerrymandering when it struck down North Carolina’s state Senate and state House districts for violating the rights of Democratic voters. In the Senate, 21 of 50 districts must be redrawn, and 56 of 120 House districts were also invalidated.
The state court ruled that these maps, designed to entrench Republican rule, ran afoul of the state constitution’s guarantee of free and fair elections. These illegal districts were so extreme that they helped Republicans to maintain their legislative majorities in 2018’s elections even though Democratic candidates won more votes statewide. If fairer districts are implemented for 2020, they could put Democrats in striking distance of a majority in one or both chambers.
Importantly, because this case was litigated solely under North Carolina’s state constitution, the U.S. Supreme Court’s ruling earlier this year that the U.S. Constitution prohibits challenges to partisan gerrymandering did not present an obstacle to the plaintiffs. And for the same reason, this decision should be insulated from federal review, much like a ruling from the Pennsylvania Supreme Court last year that replaced a Republican congressional gerrymander with a much fairer map.
Republican legislative leaders unexpectedly announced they will not appeal the ruling, meaning North Carolina will soon have new legislative maps. The lower court gave the GOP-run legislature until Sept. 18 to draw legal districts for use in 2020, but ever since they gained full control of state government in 2013, Republicans have demonstrated a flagrant disregard for the rule of law that should weigh heavily as the courts decide whether to grant the GOP another shot.
In handing down their ruling, the judges announced that they would immediately appoint a nonpartisan expert to assist them in reviewing any replacement maps to ensure they pass muster—or to draw maps of their own should the GOP’s efforts prove unconstitutional yet again.
In fact, during the past six years, Republicans have lost nearly two dozen lawsuits due to their undemocratic attempts to seize power from the public, including repeated losses in cases concerning gerrymandering. Those defeats even include a previous lawsuit over these very same legislative maps, which were redrawn for the 2018 election cycle after they were twice struck for discriminating against black voters.
Following that case, newly revealed unveiled documents from a deceased GOP redistricting consultant showed that Republicans lied to a federal court to hide their discriminatory intent when they redrew the legislative maps in 2017. Unsurprisingly, the plaintiffs in this latest case had previously said they will petition the courts not to give Republican legislators a third crack at drawing the lines due to their ongoing deception, and it’s possible that, on appeal, they could ask the appellate courts to require court-drawn maps. (Also note that under the state constitution, Democratic Gov. Roy Cooper would not be able to veto any new maps passed by the legislature.)
The GOP’s decision not to appeal comes in the context of North Carolina’s Supreme Court having a 6-1 Democratic majority thanks to Democratic gains following the 2016 and 2018 elections, meaning they would have been very unlikely to succeed. Consequently, Tuesday’s decision will remain in place, and if Republicans try to draw new replacement gerrymanders, those maps would likely run into the same state Supreme Court that appears very hostile to the GOP’s gerrymanders.
While this case only concerns the maps in one state, every state constitution has provisions similar to North Carolina’s that could be used to challenge partisan gerrymanders so long as there’s a receptive and fair-minded state Supreme Court majority to hear such a case. [See Arizona Constitution, Article 2 Section 21 – Free And Equal Elections: All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.] This ruling therefore underscores the importance of supreme court elections in key swing states next year, including Michigan, Ohio, and Wisconsin. Progressive victories in these races would go a long way toward blocking the GOP’s lopsided control over redistricting as we head into the next round of redistricting following the 2020 census.
Slate’s legal reporter Mark Joseph Stern adds, North Carolina Court Strikes Down Gerrymander, Citing Smoking Gun Evidence in the Hofeller Files:
Tuesday’s ruling (.pdf) in Common Cause v. Lewis is, in many ways, the most comprehensive judicial opinion about partisan gerrymandering ever written [it’s 357 pages]. Issued by a unanimous three-judge panel of the Wake County Superior Court, Lewis is both an exhaustive exploration of how partisan gerrymandering works and a scathing denunciation of its constitutional harms. The court had unprecedented access to the gerrymandering process thanks to the Hofeller files—a vast trove of information left behind by Thomas Hofeller (right), the GOP’s gerrymandering guru. Among other things, Hofeller helped North Carolina Republicans draw the state House and Senate maps in place today. After he died, his daughter turned over his materials to Common Cause, the organization suing to strike down these maps. Common Cause provided them to the court, and the court has relied on them heavily to illustrate exactly how Republicans rigged North Carolina’s legislative elections.
The current legislative maps were drawn in 2017, after the U.S. Supreme Court struck down the previous maps as an unlawful racial gerrymander. Republican legislators provided Hofeller with election data and instructed him to preserve the GOP’s supermajority. They later admitted under oath that a key goal of the maps was to entrench Republican power. Hofeller did as instructed: Analyzing past elections, he created a “partisanship formula” to gauge the advantage that each district would give to Republicans. He crafted as many safe GOP districts as possible—chopping up cities, counties, and even neighborhoods in the process. He even developed a color-coded “partisanship score” to confirm that each district maximally benefited Republicans.
Hofeller’s overall goal was to pack as many Democrats into as few deep-blue districts as possible, then distribute the remaining Democrats into safe Republican districts. Through this “packing and cracking,” Hofeller built a GOP “firewall” that preserved Republicans’ legislative supermajority even when Democrats won a majority of the statewide vote. At trial, experts testified that Hofeller’s maps were more favorable to Republicans than roughly 99.99 percent of maps generated by an algorithm using nonpartisan redistricting factors.
The court devoted nearly 300 pages to this kind of analysis, proving two things over and over again: First, Hofeller gerrymandered the districts with the intent to discriminate against Democrats, and second, that he succeeded, drawing maps that heavily diluted Democratic votes. None of that would matter, however, if courts could not hear partisan gerrymandering claims in the first place. And in June’s Rucho v. Common Cause, the U.S. Supreme Court ruled that federal courts could not decide gerrymandering cases because they are “beyond the competence of the federal courts.”
But the majority noted in Rucho that its decision did not “condemn complaints about districting to echo into a void” and cited state court decisions invalidating partisan gerrymanders under state constitutions. The U.S. Supreme Court has no authority to review state court decisions rooted in state constitutions that do not implicate the federal Constitution. So Rucho seemed to suggest that state courts are free to provide greater protections against partisan gerrymandering—based on their own states’ constitutions—than federal courts can.
And that’s exactly what the Wake County Superior Court did here. The panel, which consisted of two Democrats and one Republican, found that extreme partisan gerrymandering violates three separate provisions of the North Carolina Constitution.
First, the court concluded that the practice “strikes at the heart” of the free elections clause, which states: “[A]ll elections shall be free.” This clause, the court found, means “that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” Partisan gerrymandering is a clear violation of that guarantee. “Elections are not free,” it explained, “when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power.”
Second, the court held that extreme partisan gerrymandering violates the North Carolina Constitution’s equal protection clause. This clause provides greater protection for voting rights than its federal counterpart. It safeguards “the fundamental right of each North Carolinian to substantially equal voting power.” Yet Hofeller’s maps were designed to dilute Democratic votes and bar Democrats from obtaining a legislative majority. “There is nothing ‘equal’ about the ‘voting power’ of Democratic voters when they have a vastly less realistic chance of winning a majority in either chamber,” the court explained.
Finally, the court found that the gerrymandered maps violate the state constitution’s guarantees of freedom of speech and assembly. “Voting for the candidate of one’s choice and associating with the political party of one’s choice are core means of political expression,” the court noted. Indeed, the act of voting itself constitutes “expressive activity” that is “protected by North Carolina’s Freedom of Speech Clause.” Moreover, “banding together with likeminded citizens in a political party is a form of protected association,” as is “expenditure of funds in support of candidates.”
Hofeller’s gerrymander infringes on all of these protected rights. His maps constitute “viewpoint discrimination” against Democrats, “burden[ing] their speech by making their votes less effective” because of their support for Democratic candidates. Hofeller “deliberately minimized the effectiveness of the votes of citizens with whom they disagree.” His maps also “retaliate against voters” on the basis of their protected speech, diluting their votes because they engaged in political expression and association to support Democrats.
North Carolina’s extreme partisan gerrymander didn’t just hurt voters; it also harmed the Democratic Party’s “associational rights.” Hofeller’s maps hobbled the party’s “ability to translate its effort, funds and enthusiasm into a meaningful opportunity to gain majority control of the General Assembly.” And they hampered the party’s right to make “campaign donations and expenditures,” forcing it to “spend more money than it would need to under nonpartisan plans,” and making that money “less effective than it would be under nondiscriminatory maps.” These burdens, the court concluded, are intolerable under the state constitution, and the judiciary has a duty to halt this infringement of citizens’ most basic rights.
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Lewis is a breathtaking decision for voting rights advocates. It vindicates every constitutional theory that opponents of partisan gerrymandering have put forward. And it repudiates Chief Justice John Roberts’ opinion in Rucho, which insisted that courts are ill-equipped to measure and remedy partisan gerrymanders. In reality, as Lewis illustrates, it is quite easy for courts to determine when a gerrymander has robbed citizens of their fundamental rights. The Wake County Superior Court appears to have a much better understanding of how political redistricting works—and how it can be fixed—than the U.S. Supreme Court’s conservative majority.
Election law litigators should save this opinion for the 2020 redistricting battles that lie ahead. it is the template for future litigation over GOP gerrymandering.