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Supreme Court Says North Carolina’s Gerrymandered Congressional Map Will Stand for Now: Four Things to Know

Voters might be feeling dazed and confused after last week’s congressional map saga. Here’s what you need to know about the fate of this extremely gerrymandered map and others like it.

January 22, 2018

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. 

(Photo: Reuters)