The United States Law Week

Top Court to Weigh Barring Challenges to Partisan Gerrymanders

Jan. 4, 2019, 8:32 PM

The U.S. Supreme Court agreed to consider protecting politically gerrymandered voting districts from legal challenges in a case that could bolster Republican candidates and mark a show of force from the court’s new conservative majority.

The justices will review separate lower court decisions that said North Carolina’s Republican-drawn congressional map and a Democratic-drawn congressional district in Maryland are so partisan they violate the Constitution. The court will hear arguments in March and rule by June.

The court has never struck down a map as too partisan. But it also hasn’t explicitly barred challenges, mostly because Justice Anthony Kennedy refused to rule them out. Kennedy’s retirement in 2018 -- and replacement by Justice Brett Kavanaugh -- means the court may now have the five votes needed to say that courts lack power to consider partisan gerrymandering cases.

North Carolina Republicans are urging the court to take that step, saying no principled way exists to distinguish legitimate political considerations from unconstitutional gerrymandering.

“As decades of fruitless efforts have proven, trying to identify judicially discernible and manageable standards for adjudicating generalized political grievances is an exercise in futility,” the state lawmakers argue in their appeal.

The court’s ruling will shape the next round of map-drawing nationwide after the decennial census in 2020. Those lines will apply starting in 2022.

Critics say gerrymandered districts undermine democracy, letting representatives choose their voters, rather than the other way around. Although Democratic gerrymanders exist in a handful of states, Republicans are the more frequent beneficiaries, largely because their success in the 2010 elections let them draw many of the current maps around the country.

Safe Republicans

Opponents say the North Carolina map was explicitly crafted to have 10 generally safe Republican seats out of 13 overall. In November’s election, Democrats won 48 percent of the state’s overall House vote but could end up with only three districts. A fourth is still in doubt amid an investigation into possible absentee ballot fraud by a contractor who worked for the Republican candidate.

North Carolina State Representative David Lewis, a Republican who helped lead the redistricting effort, said in 2016 that he supported drawing the map with 10 Republican-heavy districts “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

A three-judge panel said the North Carolina map violated the Constitution’s equal protection clause and First Amendment. The panel also said the North Carolina map runs afoul of the Constitution’s elections clause, which guarantees “the people” the right to select their representatives.

“The Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others,” Judge James Wynn wrote for the panel. One judge dissented from parts of the ruling.

The Maryland appeal, pressed by Democratic Attorney General Brian Frosh, is narrower and doesn’t seek to categorically protect partisan gerrymanders. A three-judge panel ordered the state to redraw the boundaries of a congressional district in western Maryland for the 2020 election, saying Democrats improperly drew it to squeeze out an incumbent Republican.

Democrat John Delaney now represents the district, and Democrats captured seven of the state’s eight congressional seats in November.

The Maryland case was one of two gerrymandering appeals the court considered -- and largely sidestepped -- during Kennedy’s final term. The court cleared the disputed Maryland district for use in the November election but didn’t resolve core questions about its legality.

The high court also ruled narrowly in a case involving Wisconsin state legislative districts, saying the Democratic voters who sued hadn’t shown they had legal standing to challenge the entire statewide map.

Standing will be an issue in the latest cases as well. The North Carolina court said the challengers there had standing, in part because they include voters from all 13 congressional districts.

The North Carolina Democratic Party, the state chapter of the League of Women Voters, and the interest group Common Cause are suing alongside those voters. They say Democrats statewide were either “packed” into overwhelmingly liberal districts or “cracked” into districts where their party was likely to fall just short of winning.

Cracking and Packing

The Wisconsin ruling “supplied a roadmap” for gerrymandering lawsuits, requiring plaintiffs to show either packing or cracking on a district-by-district basis, the League of Women Voters argued in a court filing. The lower court “scrupulously followed this roadmap,” the group said.

Common Cause and the Democratic Party argued that Republicans “openly and unabashedly used state power to engage in facially invidious discrimination, for the admitted purpose of destroying meaningful electoral competition.”

North Carolina Republicans said the case suffers from the same procedural flaws as the Wisconsin suit. It “has always been an effort to vindicate a generalized preference to see more Democrats from North Carolina elected to Congress,” the Republicans argued in their appeal.

Though siding with the challengers on the main issues, the three-judge panel declined to order the map redrawn for the 2018 vote.

Kavanaugh may hold the key vote in the case, given that Chief Justice John Roberts has voiced reluctance to have the court referee partisan gerrymandering claims. Kavanaugh, President Donald Trump’s second Supreme Court appointee, has never ruled in a gerrymandering case.

The North Carolina case is Rucho v. Common Cause, 18-422. The Maryland case is Lamone v. Benisek, 18-726.

©2019 Bloomberg L.P. All rights reserved. Used with permission

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net Laurie Asséo, Ros Krasny

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