Partisan Gerrymandering Back at the Supreme Court
Will the justices finally curb efforts to use control of redistricting to rig maps?
This story was updated on January 9, 2019.
On Friday, the U.S. Supreme Court announced that it would hear oral argument in March for partisan gerrymandering cases out of North Carolina and Maryland. The Court’s announcement clears a path for the justices to rule on the constitutionality of partisan gerrymandering by the end of June 2019.
How North Carolina and Maryland’s extreme partisan gerrymanders came to be
The North Carolina and Maryland congressional maps that are at issue in these cases are among this decade’s starkest examples of extreme partisan gerrymanders, which lock in an artificial statewide majority for the political party drawing the maps, through good and bad election cycles.
The North Carolina cases (Rucho v. Common Cause and Rucho v. League of Women Voters of North Carolina) challenge the congressional map drawn by Republican lawmakers in 2016. That map was drawn to replace an earlier map that the federal courts struck down as an unconstitutional racial gerrymander. Like the old racially gerrymandered map, the new map has created an artificial 10-3 Republican advantage in a purple state that is among the most electorally competitive in the nation. In drawing the new map, North Carolina Republicans didn’t hide their intent to maximize seats for their party. Representative David Lewis, the lawmaker in charge of the redistricting process, openly proclaimed, in fact, that the map was a “political gerrymander” and that the Republicans’ goal was to “draw [it] to give a partisan advantage to ten Republicans and three Democrats.”
The resulting map has performed exactly as intended, even in the wave election of 2018. Although Democrats won roughly half of the votes cast statewide for congressional candidates in 2018, North Carolina’s congressional delegation retained its 10-3 split (pending resolution of election controversies in the race for the Ninth District).
The Maryland case (Benisek v. Lamone), meanwhile, challenges a Democratic gerrymander of a map that gives Democrats a 7-1 advantage in Maryland’s congressional delegation. As in North Carolina, the skew favoring the party that drew the map is no accident.
Like North Carolina Republicans, Maryland Democrats had unilateral control over the redistricting process and used it to transform a map that more fairly represented both parties into one that has created a dependable and substantial Democratic majority. The Democrats’ mapmakers secured this majority by packing and cracking Republican voters around the state. Most critically, Democrats successfully flipped the formerly Republican 6th District by removing large numbers of Republican voters and replacing them with heavily Democratic precincts from the Washington, D.C. area. They also packed Republican voters into the other reliably Republican district, the 1st. The resulting Democratic advantage has been very durable: Democrats have held seven of Maryland’s eight congressional seats through all four elections under the current map.
The plaintiffs’ successes before the trial courts
The plaintiffs in both North Carolina and Maryland won their cases at the trial court level, continuing a recent streak of successes for voters in the federal trial courts.
A trial court initially struck down the North Carolina map in January 2018, and the justices had an opportunity to take up that decision this past summer. Instead, they asked the lower court to review its decision in light of their opinion in Gill v. Whitford, last term’s partisan gerrymandering case out of Wisconsin. Back in North Carolina, the trial court issued a new opinion again striking down the plan, ruling that 12 out of the plan’s 13 districts were unconstitutional partisan gerrymanders. The defendants quickly appealed.
The Maryland plaintiffs won their case without even going to trial. The panel of three federal judges that heard the case unanimously agreed that the Maryland map violated voters’ rights under the First Amendment based on the evidence that the plaintiffs had assembled ahead of trial. The court’s decision was a long-awaited victory for the Republican voters who brought the case. They have been fighting the Democratic gerrymander for five years, first filing their suit in 2013 and twice appearing before the Supreme Court on other issues related to their case.
The issues on appeal
The North Carolina and Maryland appeals together present several questions. The most important, however, are whether the courts can decide partisan gerrymandering cases at all, and — if the courts do have that power — whether either map is an unconstitutional partisan gerrymander. If the justices uphold any of the trial courts’ decisions, it will be the first time that the Supreme Court will have struck down a map on partisan gerrymandering grounds.
What’s next for the cases
The Court has announced that oral argument will be held during its March argument session, which falls in the latter half of the month. Under the Court’s order, the defendants’ briefs are due by February 8 and the plaintiffs’ briefs are due on March 4. Amicus briefs in support of the defendants or neither party are due by February 12, and those supporting the plaintiffs must file their briefs by March 8. On this timeline, the Court will be in position to issue its opinions by the end of its term in June 2019.