In 2015, Judge Robert Payne of the U.S. District Court for the Eastern District of Virginia previewed in a noteworthy concurrence and dissent that in the Fourth Circuit, partisan gerrymandering may be unconstitutional : “[T]here is a strong argument that gerrymandering purely for the purpose of achieving or maintaining partisan advantage is unconstitutional because it is a denial of the equal protection of law guaranteed by the Fourteenth Amendment. ” Earlier, this summer, in Gill v. Whitford, the Supreme Court of the United States left undecided that very question of whether gerrymandering political districts to favor one political party over others is Constitutional. The Gill case, by order of the Supreme Court, is back in Wisconsin being reassessed.
And now, this week, another federal District Court, this time in North Carolina, waded back into the partisan gerrymandering fray. In Common Cause v. Rucho, the Court ruled that the partisan gerrymander violated Article I of the Constitution – guaranteeing the people the right to choose members of the House of Representatives, the First Amendment’s guarantee of free speech, and the Fourteenth Amendments’ guarantees of Equal Protection of the law. So begins another chapter in the long running dispute over partisan gerrymandering.
No Doubt About It: North Carolina District Boundaries Were Drawn to Protect Partisan Advantage
As Wisconsin legislators did in Gill, North Carolina legislators used sophisticated software and electioneering experts to carefully draw district lines. They did that to ensure that Congressional districts had enough Republicans to nearly guarantee Republican victories. They also “cracked” Democratic strongholds into multiple districts and, where that wasn’t possible, “packed” Democratic-voting precincts into just a few districts.
“Cracking” and “packing” blocks of the opposing party to dilute their voting strength in particular districts, and overall, is the essence of partisan gerrymandering. Proving what a legislature intended when it set district boundaries can, in some cases, be difficult. Where one observer, for example, sees an attempt to create a partisan advantage another might see an innocuous attempt to keep a political subdivision together.
North Carolina legislators, though, made it exceptionally easy on challengers to prove the legislature’s partisan intentions. The legislators charged with drafting the maps made no bones about the fact that preserving a Republican super-majority of Congressional districts was precisely what they wanted to do. Indeed, the public criteria they set out for drawing the maps specifically included preserving “Partisan Advantage.” One Republican legislator charged with drafting the North Carolina districts boasted that the 2016 map was designed to preserve a 10-3 Republican advantage in the state’s Congressional delegation only because he could not design a map that would result in an 11-2 advantage.
Any lingering doubt about whether the 2016 plan would work to Republicans’ advantage was resolved by the results of North Carolina’s 2016 Congressional elections. Republicans won 53% of the votes cast in all North Carolina Congressional races. One might have expected, then, that they would eke out a narrow majority of Congressional seats, say 7 out of 13 or 54% of the seats. Instead, they won, precisely as the map drawers predicted, 10 out of 13, or 77% of the North Carolina seats in Congress.
In short, North Carolina was successful in cracking and packing Democrats so their votes in 10 districts weren’t sufficient to win and their votes in 3 districts were overwhelmingly sufficient. Aficionados of gerrymandering litigation consider any votes greater than 50%+1, for a winning candidate, and any votes at all for a losing candidate, “wasted.” The rationale is that those votes could have been better deployed in a district where the party with “wasted” votes might have used them to win. Partisan gerrymanders’ goal is to cause the other side to “waste” more votes than their side.
Partisan Gerrymandering Violates Article I, the First Amendment, and Equal Protection Constitutional Protections
           Challengers to North Carolina’s 2016 districting plan argued that the plan was unconstitutional for violating three distinct Constitutional protections: (i) Article I of the Constitution which requires election of the Congressional Representatives by the people, (ii) the First Amendment, and (iii) the Equal Protection clause. The Common Cause Court agreed with plaintiffs on all three points.
Plaintiffs argued that Article I of the US Constitution guarantees that people decide who their representatives to Congress should be. Partisan gerrymandering leaves Congressional candidates responsive not to the people, or at least not entirely to them, but to the partisan faction in the state legislature that draws Congressional district boundaries. In this way, partisan gerrymandering undercuts the purpose of Article I’s provision that the people should decide who their Congressional representatives should be.
Similarly, plaintiffs argued that partisan gerrymandering ran afoul of the First Amendment. They reasoned that voters whose views were disfavored by state legislators had their rights to hold those views and speak about them infringed by partisan gerrymanders. That’s because partisan gerrymandering dilutes the voting strength of people with views the legislature disfavors and increases the voting strength of people the legislature favors. That sort of content regulation of political views is, challengers argued, unlawful.
Finally, the District Court agreed that, in all but one North Carolina Congressional district, partisan gerrymandering violated the Equal Protection guarantee of the Constitution. The Court concluded that the districting plan discriminated against Democrats to the benefit of Republicans a kind of disparate treatment that the Court concluded was impermissible. As importantly, the District Court concluded that it could find no explanation related to a legitimate districting concern that explained the need for the disparate treatment of the two parties.
In addition to statements made by legislative drafters concerning their goal of achieving partisan advantage, the Common Cause Court used voting statistics as circumstantial evidence that the drafters of the district maps intended a partisan gerrymander. The Court also used statistical evidence to show that the gerrymander had the effect of advantaging one party over the other. Regarding one Congressional district, for example, the Court concluded that “the [statistical case demonstrates that the] effect of the 2016 [plan] is to pack Democratic voters into a district in an amount greater that would otherwise naturally occur more than 99 percent of the time under neutral districting criteria.”
Significantly, though, the Common Cause Court did not adopt a statistical threshold or limit that created a presumption of permissible or impermissible gerrymandering. The Court, instead, looked at the totality of circumstances in deciding whether impermissible partisan animus drove the district line setting. One of the lessons many observers drew from the Supreme Court’s consideration of Gill was that many members of the Supreme Court were extremely skeptical of a statistical litmus test for invalidating district boundaries.
District Court Sprinting to Get a New Congressional Map Drawn Before 2018 Election
The Common Cause ruling is noteworthy, too, for the speed with which it proposes to remedy the districts it found to be unconstitutionally drawn. In 2017, the District Court conducted a four day trial on the partisan gerrymandering claims. It ruled then that the 2016 North Carolina Congressional district map was unconstitutional. After the Supreme Court decided Gill this summer, though, on July 25, the High Court vacated that District Court’s judgment and ordered it to reconsider the case in light of Gill.
The District Court completed that required reconsideration just a month later, on August 27. In its opinion Monday, the District Court gave the parties just four days, until August 31, to submit briefs on whether the unconstitutional 2016 districting plan may be used for the Congressional elections set to go forward on November 6. To be clear, that’s this coming November 6, only 71 days from the Court’s ruling on Monday.
Just as remarkably, the District Court held that because of the exceptional circumstances of the case, it may not give the North Carolina legislature an opportunity to fashion new, lawful Congressional districts. Doing so, the Court reasoned, could take too much time and that could end up requiring use of the unconstitutional 2016 plan in the 2018 election. Instead, the Court anticipated that it would set the districts for the coming 2018 election.
For those reasons the Court enjoined, i.e., explicitly issued an order forbidding, North Carolina from using its 2016 Congressional district maps in the 2018 election. If North Carolina wants the District Court to consider any revised districting plan from the legislature, it will have to submit that plan with accompanying documentation proving it was lawfully drawn in just 17 days – by September 14. Finally, the Court announced its intention to appoint a Special Master to help draft a constitutionally appropriate districting plan regardless of whether the parties or the North Carolina legislature identify their own.
Partisan Gerrymandering Cases Are Among the Most Complex Constitutional Law Problems
Partisan gerrymandering cases present and magnify some of the most contentious issues in law and politics.
- Should voters choose their representatives or, because representatives set district boundaries, should politicians choose voters?
- Do voters have a First Amendment right to not be “cracked” and “packed” into voting districts or do states have a right to have their duly elected politicians do the hard work of drawing district boundaries?
- Should federal judges be peering over their shoulders and second guessing the map making that state legislators are charged with doing or should state legislatures be primarily responsible for the horse trading and literal and figurative line-drawing that’s required in setting Congressional districts?
- Speaking of political questions, are redistricting determinations even the kind of question that courts are competent to decide or are they better left to the politicians elected by voters?
- Are gerrymandered districts expressions of the peoples’ will or are they tools to silence people?
- When unelected judges get involved in these gerrymandering fights are they usurping democracy or saving it?
The US District Court for the Middle District of North Carolina answered a lot of these questions pretty clearly. But, for the rest of the country, the questions are still undecided.
November 6 is only about 70 days away. North Carolina voters think they’re going to the polls that day. Even though the election is only weeks away, when those voters step into their voting booths, who will be on the ballot is still not clear because the ink’s not yet dry on the district maps.
UPDATE (September 4, 2018): As noted above, the Federal District Court in North Carolina ordered the parties to propose, by Friday August 31, 2018, how best to conduct the coming November elections. On Friday, plaintiffs in the case filed a surprise concession that there is insufficient time between now and the November mid-term Congressional elections to fashion Constitutional districts. Reuters reports that “‘Plaintiffs have concluded that a statewide redistricting just weeks before Election Day would not be a good-government solution,’ the North Carolina Democratic Party, Common Cause, and League of Women Voters said in their filing.” Whether the federal Court in North Carolina agrees, remains to be seen.
See below for more of Cullen Seltzer’s articles on this topic:
Reading Tea Leaves from Arguments in Gill v. Whitford: 5 Lessons from an Election Law Revolution
A Revolution Brewing: Partisan Gerrymandering May be Unconstitutional
Re-Districting After Shelby County v. Alabama: a Volatile Mix of Race and Politics