The saga of North Carolina’s extremely gerrymandered congressional map can be whiplash inducing.
In a little more than a week, courts weighed in three separate times on the map’s fate. First, a panel of three federal judges ruled in a landmark decision that the map was an unconstitutional partisan gerrymander, blocked its use in future elections, and ordered a new map drawn in time for the 2018 elections. Then, the panel rejected Republican legislators’ request to pause the redrawing while they appealed to the U.S. Supreme Court. By the end of this past week, however, the Supreme Court had stepped in, freezing the redrawing for the indefinite future.
Where does this leave North Carolina’s voters, besides dazed and confused? And what — if anything — does the Supreme Court’s latest action say about the fate of extreme partisan gerrymanders like North Carolina’s?
1.) North Carolina Voters Will Likely Not Get New Maps in Time for the 2018 Elections
Now that the panel’s opinion invalidating the current map is on appeal, there will be no changes to the state’s congressional districts until — and unless — the Supreme Court says so. That’s unlikely to happen in time for North Carolina’s 2018 primary and general elections. That means North Carolinians will vote under the same map they voted under in 2016.
After asking the parties to brief whether it should take the case — a process that could take several months — the Supreme Court will have one of three options, none of which are particularly speedy.
The Court’s first option would be to sit on the case until it figures out its rulings in the pending Wisconsin and Maryland partisan-gerrymandering appeals. And then the Justices could send the case back to the panel, ordering it to reexamine its opinion in light of their rulings in those appeals. But the Court is unlikely to issue its Wisconsin and Maryland rulings before June. Sending the case back down after that would only lead to several more months of proceedings in front of the panel. And then, possibly, yet another Supreme Court appeal.
Alternatively, the Court could issue an order this summer disposing of the case without holding oral argument. The Court could do this if its eventual rulings in the Wisconsin or Maryland appeals clearly cover this case.
Finally, the Justices could set the case for oral argument next fall. Under this scenario, the parties would write a second set of briefs over the course of the summer or early fall, argue the case in front of the Court after that, and then wait several months for a published opinion. Of course, the Justices could speed up the briefing process to squeeze this case in before the Court shuts down for the summer. But they haven’t done so here and their window for doing so is narrowing every day (if it hasn’t already closed).
Under any of these scenarios, a final ruling on the legality of the current congressional map won’t be issued by May 8, 2018, when North Carolina’s primaries are scheduled to be held. Because courts are reluctant to change maps too close to an election — let alone after a primary has been held — North Carolina’s voters are all but certain to be stuck for at least one more round of congressional elections with a map that ranks as one of the decade’s worst gerrymanders.
2.) North Carolinians Will be Voting Under One of This Decade’s Most Biased Maps
Although North Carolina is a purple state, with hotly contested elections for statewide offices and a vibrant, diverse collection of voices and interests, its congressional delegation is a deep-red slate of ten Republicans and three Democrats. This is no accident: It’s the product of extreme partisan manipulations.
As Representative Lewis, one of the legislators in charge of the redistricting process, stated on the record, the map is “a political gerrymander,” which he wanted drawn “to give a partisan advantage to 10 Republicans and 3 Democrats because [he did] not believe it [would be] possible to a draw a map with 11 Republicans and 2 Democrats.” The map delivered for Representative Lewis because it artfully packed and cracked Democratic voters around the state to minimize their ability to elect the candidates of their choice. This structural disadvantaging of Democrats is confirmed by reams of social science that the plaintiffs produced at trial. The plaintiffs’ social-science analysis showed a map with extreme asymmetries that could not have come about accidentally.
As a result of the gerrymander, unless there is an unprecedented political tsunami this fall, North Carolina voters are likely to end up with the same 10-to-3 congressional delegation they already have, however ill-gotten several of the Republican seats will be.
3.) The Current Map Preserves the Effects of North Carolina’s Unconstitutional Racial Gerrymander
Although there is no question that North Carolina’s map heavily disadvantages Democrats, this partisan gerrymandering fight is much more than a struggle between Democrats and Republicans,
The legislature adopted the current map in 2016, after a separate panel of federal judges ruled that North Carolina’s 2011 congressional map was a racial gerrymander. (The Supreme Court affirmed that decision handily.) Like the 2016 map, the 2011 map generated a safe majority for Republicans, mainly by packing and cracking African-American voters, the state’s most reliable Democratic constituency. So, when Representative Lewis asked, in 2016, for a map that could deliver a reliable 10-to-3 Republican majority, he was effectively asking the mapmakers to use partisanship data to lock in the majority that his party had originally obtained through racial gerrymandering.
But, of course, because African-American voters in North Carolina voters are heavily Democratic, switching from a racially driven redistricting to a party-driven redistricting is basically six of one versus one-half-dozen of the other. Either way, the mapmakers were creating a congressional plan that would heavily limit the voting power of the state’s African-American population.
4.) Hope Remains for Ending Extreme Partisan Gerrymandering
Don’t over-read the stay.
A stay in this case was almost inevitable. In order to deny a stay, the Court would have to have concluded that the three-judge panel was likely right in ruling that the congressional map is unconstitutional. Even if a majority of Justices were inclined to think that the map should be struck down, that would represent a major shift in the Court’s thinking about partisan gerrymandering. (That’s because the Court’s case law doesn’t offer any majority rulings for determining when a partisan gerrymander crosses the constitutional line.) The Justices would likely prefer to make an announcement of their changed thinking in a detailed, fully reasoned opinion—for instance, in either the Wisconsin or the Maryland case pending before the Court — rather than rush it out in a short opinion on tight timeline, or issue a cryptic one-line order.
Ultimately, then, the stay says less about where the Court’s going and more about where it’s been. The Court’s decision to take both Wisconsin and Maryland this term suggests that the Justices are serious about saying something important about gerrymandering by summer time. Under these circumstances, the hope for limits on extreme partisan gerrymandering is still alive and kicking.