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Analysis

The Supreme Court Takes on Partisan Gerrymandering

The Court can end extreme abuses of the redistricting process when it takes on cases challenging North Carolina and Maryland’s congressional maps.

March 12, 2019

The U.S. Supreme Court will once again tackle partisan gerry­man­der­ing this month when it hears argu­ments in cases chal­len­ging congres­sional maps in North Caro­lina and Mary­land. These cases set the stage for the Court to finally put mean­ing­ful limits on the extreme gerry­man­der­ing that has plagued a hand­ful of maps around the coun­try this decade.

Help from the Court can’t come soon enough. This decade’s extreme gerry­manders have shown just how flag­rantly politi­cians can abuse redis­trict­ing processes when they have the chance. And they are an omen of what could happen when elec­tion maps are redrawn in 2021 if the Court does­n’t step in now to set some limits on partisan mapmak­ing.

Here are answers to some common ques­tions about the cases:

1. How are the North Caro­lina and Mary­land cases similar?

The North Caro­lina and Mary­land congres­sional maps 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 motives for these maps were extreme — and extremely clearly stated. In both of these cases, the politi­cians behind the gerry­manders made no secret of their plans to max out and lock in their party’s seats. Repres­ent­at­ive David Lewis, one of the lawmakers in charge of the North Caro­lina redis­trict­ing process, openly proclaimed 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.” Former Mary­land Governor Martin O’Mal­ley simil­arly test­i­fied that his goal was to “create a map that was more favor­able for Demo­crats” by increas­ing their congres­sional seats from six to seven out of eight.

The results under these maps have been extreme, too. North Caro­lin­a’s map has created an arti­fi­cial 10–3 Repub­lican advant­age in a state that is virtu­ally evenly split in statewide races. The map has held even through the wave elec­tion of 2018 (pending a special elec­tion in the Ninth District). Mean­while, in Mary­land, Demo­crats have held a 7–1 advant­age for the entire decade in a state that has recently elec­ted Repub­lic­ans to statewide offices and where altern­at­ive maps that offered better repres­ent­a­tion to African-Amer­ican communit­ies would have resul­ted in a 5–3 deleg­a­tion.

2. How are these cases differ­ent from each other?

The North Caro­lina and Mary­land cases differ from each other in several ways. The most import­ant differ­ence concerns their altern­at­ive legal theor­ies for how the gerry­manders viol­ate voters’ consti­tu­tional rights. The plaintiffs have put several differ­ent theor­ies on the table for the Court.

One group of plaintiffs, which includes the League of Women Voters of North Caro­lina, contends that the North Caro­lina gerry­mander viol­ated Demo­cratic voters’ rights under the First and Four­teenth Amend­ments because the mapmakers “diluted” their votes. In other words, the mapmakers drew the lines of multiple districts around the state to decrease the abil­ity of Demo­cratic voters to elect the candid­ates of their choice. Accord­ing to this group of plaintiffs, vote dilu­tion occurs when (1) mapmakers inten­tion­ally draw a district to under­cut the voting power of voters from a rival party and (2) the map as a whole is system­ic­ally slanted to give one party an advant­age in convert­ing their votes into seats.

Another group of plaintiffs in the North Caro­lina case, which includes Common Cause, also argues that Demo­crats’ votes were diluted in districts around the state, but they have a differ­ent theory for prov­ing it. Accord­ing to this group, vote dilu­tion occurs when (1) the mapmakers draw the lines of a district with the inten­tion of under­cut­ting the power of voters from a rival party who live there, and (2) those voters had their power mean­ing­fully reduced.

This second group of plaintiffs, which also includes the North Caro­lina Demo­cratic Party, makes two addi­tional claims. First, they argue that the gerry­mander under­cuts Demo­crats’ asso­ci­ational rights under the First Amend­ment. In other words, the map makes it harder for Demo­crats to band together with other members of their party at the ballot box and get their candid­ates elec­ted. And second, they contend that the gerry­mander viol­ates Article I of the U.S. Consti­tu­tion, because it is a law that tries to dictate the outcomes of elec­tions.

Mean­while, the plaintiffs in Mary­land argue that they are the victims of polit­ical retali­ation that is forbid­den under the First Amend­ment. They contend that the mapmakers specific­ally set out to flip Maryland’s Sixth District from red to blue in order to prevent GOP voters there from send­ing any more Repub­lican candid­ates to Congress. The legis­lature accom­plished this goal by remov­ing large numbers of Repub­lican voters from the Sixth District and repla­cing them with heav­ily Demo­cratic precincts from the Wash­ing­ton, D.C. suburbs.

But the forest should­n’t be lost through the trees: Many consti­tu­tional theor­ies are in play in these cases, because the extremeness of the gerry­manders viol­ates consti­tu­tional prin­ciples in many ways. In decid­ing the cases, the Supreme Court can choose the approach that best addresses the harm that is before it and minim­izes the risk of unin­ten­ded consequences.

3. How are these cases differ­ent from the ones that the Court heard last term?

Last term, the Supreme Court twice ducked oppor­tun­it­ies to estab­lish a rule against partisan gerry­man­der­ing, conclud­ing that the Mary­land case was prema­ture and that the plaintiffs in the Wiscon­sin case hadn’t met the prerequis­ites for bring­ing suit. But it will be harder to avoid a major ruling with this term’s cases.

First, this term’s cases don’t face the kind of threshold legal prob­lems that the Wiscon­sin case did. The Court rejec­ted the Wiscon­sin appeal, conclud­ing that the plaintiffs hadn’t shown evid­ence that they had suffered the kind of injur­ies that were neces­sary to get them into court —spe­cific­ally,  that their partic­u­lar districts had been manip­u­lated through crack­ing or pack­ing of voters. The plaintiffs, who were all indi­vidual Demo­cratic voters, only tried to show that Wiscon­sin’s state assembly map as a whole was slanted in favor of Repub­lic­ans. That “stand­ing” prob­lem is gone now. Both the North Caro­lina and the Mary­land cases have indi­vidual plaintiffs claim­ing that the specific districts where they live have been either packed or cracked.

Addi­tion­ally, the Demo­cratic Party is a party in the North Caro­lina cases. This opens up a new poten­tial path to a win. Justice Elena Kagan sugges­ted in her concur­ring opin­ion in the Wiscon­sin case that a statewide party might be able to win an “asso­ci­ational rights” claim under the First Amend­ment like the Common Cause plaintiffs are advan­cing now.

Other circum­stances have also changed. For starters, the Supreme Court has a new face, with Justice Anthony Kennedy retir­ing and Justice Brett Kavanaugh repla­cing him. Justice Kennedy was long considered a key swing vote on partisan gerry­man­der­ing, while Justice Kavanaugh’s views are uncer­tain. Some have sugges­ted that Justice Kennedy’s retire­ment will make it hard to win partisan gerry­man­der­ing cases, but that view is too pess­im­istic. Indeed, during last year’s oral argu­ments, both Chief Justice John Roberts and Justice Samuel Alito expressed seri­ous concerns with the legal­ity of maps openly designed to disad­vant­age one party. That is exactly the fact pattern they are confront­ing in the North Caro­lina and Mary­land cases.

There is also increased urgency for a rule against partisan gerry­man­der­ing with the next round of redis­trict­ing rapidly approach­ing. During the last term, the Court may have believed that it had more time to figure things out, but that time is now running danger­ously short. The increased urgency of the situ­ation, combined with the stark facts of gerry­man­der­ing in North Caro­lina and Mary­land, could help the Justices get to an agree­ment to put an anti-gerry­man­der­ing rule in place.

4. What are defend­ers of these gerry­manders telling the Court?

The attor­neys for North Caro­lina and Mary­land have raised a battery of argu­ments to convince the Supreme Court to over­turn the plaintiffs’ victor­ies in the lower courts. Paul Clem­ent, the attor­ney for North Caro­lina, argues that the Consti­tu­tion offers no “judi­cially manage­able stand­ard”—that is, clear legal prin­ciples to focus the courts’ atten­tion when they hear partisan gerry­man­der­ing claims. The greatest evid­ence of the lack of a stand­ard, Clem­ent contends, is the sheer number of consti­tu­tional theor­ies at play in these cases.

Many of the other argu­ments on the table are famil­iar from past cases before the Court. Some of these argu­ments look back­ward. For instance, the maps’ defend­ers contend that the long history of partisan gerry­man­der­ing in Amer­ica suggests that the prac­tice cannot possibly be uncon­sti­tu­tional. Friend-of-the-court briefs support­ing the maps’ defend­ers also argue that courts histor­ic­ally have been bad at identi­fy­ing when a map has entrenched one party in power. 

Other argu­ments look forward, rais­ing concerns about the consequences of ruling for the plaintiffs. Most signi­fic­antly, the maps’ defend­ers have argued that a ruling for any of the plaintiffs will open the floodgates for an over­whelm­ing tide of partisan gerry­man­der­ing cases in upcom­ing years.

Strong coun­ter­ar­gu­ments exist for each of these conten­tions. But plaintiffs will nonethe­less have to address them when they appear before the Justices later this month.

5. How would rulings in these cases affect voters?

A ruling for either the North Caro­lina or Mary­land plaintiffs could set some import­ant outer limits on the most extreme cases of partisan map manip­u­la­tion. This would help ensure that politi­cians can’t rig maps to maxim­ize their seats, cement their advant­age, or minim­ize their oppon­ents’ voices. Such a ruling would­n’t suddenly allow voters to chal­lenge maps all around the coun­try. But voters in the small number of states where there are still similar extreme gerry­manders, like Ohio and Michigan, could see some last-minute relief.

Even a limited ruling like this would send a power­ful signal to the legis­latures that will redraw the maps in 2021, making it clear that the partisan shenanigans of this decade will not be toler­ated in the next. That could limit the number of extreme cases that the Court will have to take up in the 2020s.

(Image: Alex Wong/Getty)