North Carolina’s current congressional districts were drawn to benefit Republicans and elect them to 10 of the state’s 13 U.S. House seats, facts that no one disputes. Now the U.S. Supreme Court is tasked with determining whether partisan gerrymandering is constitutional.
The court’s nine justices heard oral arguments Tuesday on the issue, quizzing challengers of the current maps about what standards could be enforced across the country and whether by setting one they’d be opening the door to a flood of future litigation.
At issue is the map used for the 2016 and 2018 congressional elections. It was drawn by Republican state lawmakers to replace a different one drawn in 2011 that was ruled unconstitutional due to racial gerrymandering. From their questions, the justices appeared split along ideological lines with the liberal justices more sympathetic to arguments that partisan gerrymandering could run afoul of the court’s “one person, one vote” standard.
“Does one person have one vote that counts equally with others if the impact of her vote is reduced based on her party affiliation?” Justice Ruth Bader Ginsburg asked.
Those challenging the map argued that voters were discriminated against on the basis of their political affiliation by splitting Democratic voters into several Republican-leaning districts and then packing Democrats into others.
The court’s conservative bloc, while somewhat sympathetic to potential problems caused by gerrymandering, probed the map’s challengers for a standard that could be applied nationwide to districts. Over and over again, they asked if what the challengers were seeking was “proportional representation.”
“You would like us to mandate proportional representation,” said Justice Brett Kavanaugh, who said he was not going to dispute that “extreme partisan gerrymandering is a real problem for our democracy.”
The attorneys challenging the maps — Emmet J. Bondurant for Common Cause and Allison Riggs of Durham for the League of Women Voters of North Carolina — said repeatedly they were not asking for the court to mandate proportional representation. Riggs, in answering a question, said the constitution does not require proportional representation.
“We’re looking for situations where the parties are being treated differently and there’s a severe and long-lasting discriminatory effect on a disfavored party,” Riggs said after the hearing.
Republicans led in 10 of 13 House races in November’s election returns. They won 1.84 million votes in races for 13 seats, slightly more than Democrats who won 1.77 million votes in races for 12 seats. (The Democrats did not have a candidate in the 3rd District, in which Republican Walter Jones won 187,901 votes.) The results of the 9th District, included in the vote totals, were thrown out by the state board of elections due to election fraud.
In court, Riggs laid out a three-pronged “vote dilution test” to apply to future elections, which included partisan intent at the district and statewide level and included proving a “a severe and durable effect.”
“The vote dilution test presented to this Court today is a limited and precise test designed only to impose liability on the worst of the worst cases, thus limiting the number of partisan gerrymandering cases that this Court will see,” Riggs said, trying to answer one of the pressing questions about how many reviews the court would have to handle.
Who draws districts?
Kavanaugh, the newest judge on the court, said that others — state Supreme Courts, Congress and state legislatures — are tackling the problem in a variety of ways. Some states, Justice Neil Gorsuch pointed out, have used ballot initiatives to implement independent commissions which redraw districts. Democrats in the U.S. House have pushed for independent commissions as part of their first bill in the new Congress.
“The North Carolinian plaintiffs in front of you can do nothing to solve this problem,” Riggs said. “Other options don’t relieve this court of its duty to vindicate constitutional rights.”
North Carolina House Speaker Tim Moore attended the hearing in Washington. He said “centuries of jurisprudence” would dictate that the court uphold the districts as appropriate. He said he does not favor an independent commission to draw districts in the state.
“I like the position that the legislature sits in of drawing those districts and being directly accountable to the voters. If we have some kind of independent commission that’s not elected and not answerable directly to the voters, it’s not about taking the power from the legislature to draw the districts, it’s really taking that power away from the voters,” Moore said. “We are a voice for the people. If you put it in the hands of bureaucrats that are not elected, you’re doing a disservice to the voters.”
Paul Clement, the attorney representing North Carolina’s Republican lawmakers, defended the maps, saying that the nation’s framers intended for state legislatures — inherently partisan bodies — to construct congressional districts. Clement argued that courts have failed to identify a test to apply to partisan gerrymanders, though “not for lack of judicial imagination,” he said.
“The root cause of this failure is the basic decision of the framers to give responsibility for congressional districting to political actors,” Clement said. “The framers consciously chose to give the primary authority to state legislatures. And then, to police the possibility that state legislatures, which the framers knew to be partisan institutions, would engage in too much partisanship, the framers chose a structural solution, by giving the federal Congress supervisory authority.”
Justice Sonia Sotomayor pushed back, saying “that ship has sailed” because of judicial rulings that have declared certain acts by state legislatures, including race discrimination, unconstitutional.
Clement said “you have an equal right to vote as an individual,” but that it is not a constitutional right to be represented by someone you agree with or by your preferred candidate.
“Lots and lots of voters live in a district where, either because of geography or because of state action, they’re not going to have their preferred candidate elected,” Clement said.
Former California Gov. Arnold Schwarzenegger, a Republican, attended the hearing. Afterward he called gerrymandering a “national scandal,” which forces primary candidates to the left and to the right to win gerrymandered Democratic and Republican districts, respectively. He said new technology makes it even easier to carve up districts.
“It is a disservice to the people. It’s not a representative government. It is a misrepresentative government,” Schwarzenegger said.
Maryland Gov. Larry Hogan, a Republican, said after the arguments that he hopes the Supreme Court takes action. The court heard arguments in a companion partisan gerrymandering case from Maryland on Tuesday, one that claims Republicans were disadvantaged by maps drawn by a former Democratic governor and lawmakers.
“This is an issue that both Republicans and Democrats are guilty of,” Hogan said, speaking across from the U.S. Capitol. “It’s one of the biggest problems we have in America. It’s one of the reasons why we have so much divisiveness and dysfunction here in Washington.”
Moore said political polarization is not a function of redistricting. Instead, it’s a symptom of the country’s partisan divide.
“Legislative seats and actions are simply a reflection that our country is much more polarized on partisan issues now than it has been in a long time,” Moore said.
Lewis’ statement front and center
Before the arguments, partisans on both sides took their case public in the national media.
“Federal courts, including the Supreme Court, have long held that political considerations are fair game, and maps produced on the basis of those considerations are perfectly legal,” wrote Republican state lawmakers David Lewis and Ralph Hise in an op-ed published by The Atlantic.
In the piece, Lewis defended his statement about partisan gerrymandering.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” Lewis said at the time.
His statement has been front and center in court cases over the districts. In the piece, Lewis defended the statement, saying it was not a gaffe, but a response to litigation and the “shifting goalposts” from federal court. It came up again at the Supreme Court. Justice Elena Kagan brought up the comment in court.
Riggs said if the court were to allow the North Carolina map to stand, it would allow extreme partisan gerrymandering all over the country.
“The danger of doing nothing is greenlighting what David Lewis said and did, and if you greenlight what David Lewis said and did, you’re going to have legislatures trying to cloak themselves in partisan gerrymandering,” Riggs said. “So mask all kinds of improper and illicit behavior and just say, ‘I said it was a partisan gerrymander, and the Supreme Court said it was OK when David Lewis said it.’”
Gov. Roy Cooper, a Democrat, wrote an op-ed for The Washington Post along with Hogan.
“Elections should be decided by the voters. Under the current system, politicians devise maps that make some votes count more than others. They rig the system with impunity,” Cooper and Hogan wrote.
The court is expected to render its opinion in the summer.