The U.S. Supreme Court ruled today that “(p)artisan gerrymandering claims present political questions beyond the reach of the federal courts”. The 5-4 decision followed precedent established in Davis v. Bandemer (1986).
The basic argument, written by Chief Justice John Roberts, is that deciding what is “fair” when drawing district maps is a political, not constitutional, question (page 3):
Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?”
And again, on page 17, the court asserts that groups seeking to use the courts to draft districts are trying to utilize a tool that is not appropriate for the job:
Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve— based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.
The bottom line is that there is no constitutional requirement for the courts to require proportionality in federal districts. The idea that districts must be drawn so that political parties must receive the number of legislative seats that they believe is fair has always been legal fiction; Rucho v Common Cause confirms that.
With the clarity of the ruling and its grounding in precedent, Rucho v Common Cause should decrease the number of redistricting lawsuits being brought to federal courts.
The struggle over redistricting in NC will continue
However, the struggle over redistricting in North Carolina is far from over.
On the political front, the General Assembly is considering several proposals for creating a commission to draft or help draft district maps. Today’s decision will increase debate on those proposals. While some of those proposed plans are simply exercises in political fiction and exercises in overreach, others are more realistic and have at least some bipartisan support.
There is also another court case that will potentially have a bigger impact on elections in North Carolina than Rucho v Common Cause. Common Cause v Lewis will begin working its way through the North Carolina judicial system next month. It is a lawsuit designed to give more power to the Democratic Party. In fact, the Democratic Party is one of the primary plaintiffs in the suit.
One justice, Anita Earls, has worked with left wing groups on redistricting cases in the past and it is difficult to imagine that her past employment would have no impact on her judgement in the case. Even if she recused herself from Common Cause V Lewis, the commanding majority that Democrats have on the North Carolina Supreme Court increases that chance that they will toss out the current state legislative districts before the 2020 election. The size of the Democratic majority on the court was increased by a Republican mistake in the 2018 election that allowed for the Republican vote to be split between two candidates and grew even wider with the resignation of Republican former Chief Justice Mark Martin earlier this year, creating an ideal environment for a lawsuit like those Earls once litigated.
The redistricting fight will be continued on those other fronts.
