Reopening a deeply divisive controversy that has troubled the Supreme Court for 32 years, four state legislators from North Carolina have urged the Justices to bar all constitutional challenges to partisan gerrymandering.
The decades-long search for a way to judge the constitutionality of election maps that give one party’s candidates a clear advantage at the polls has been “an exercise in futility,” the state lawmakers argued. The time has come to end that search altogether, according to the appeal in the case of Rucho v. Common Cause. The document has just become available publicly.
If the Court were to do as asked, legislators with control of their chambers would have no limit on how far they could go to create for their party an enduring domination of seats in state legislatures and even in the U.S. House of Representatives.
The only realistic remedy would be for the people of a state to take the task of drawing new districts away from the legislature, or -- ultimately -- for the nation to amend the Constitution.
The timing of when the Supreme Court acts on the new appeal could be crucial. At present, with one seat vacant on the Court since Justice Anthony M. Kennedy’s retirement last summer, it appears that there are four Justices who are deeply skeptical about challengers to partisan gerrymandering and four Justices who are keenly interested in finding ways to clearly restrain it under the Constitution.
If the Court were to deal with the new case with only eight Justices, it might well split 4-to-4, which would postpone a constitutional reckoning for weeks if not longer.
The Senate is currently engaged in a dispute over whether to approve federal appeals court judge Brett M. Kavanaugh to succeed Justice Kennedy. If he were to join the Court, he probably would hold the tie-breaking vote. He has a strongly conservative record in his 12 years on a federal appeals bench, so he might well side with the Justices who up to now have looked askance at partisan gerrymandering claims.
The underlying constitutional controversy has been unfolding since the Supreme Court, in a 1986 ruling, refused to close the courts to such claims but indicated it did not know how to create a workable standard on when partisanship had gone too far in the process of drawing new election districts. New maps are almost always drawn after every 10-year federal census, because many people will have moved from place to place, and the population shifts may make existing districts unequal – something the Supreme Court has barred since famous rulings in 1964 creating the “one-person, one-vote” constitutional mandate.
The Court had two cases before it in its last term, and both cases offered an opportunity for the Court to recognize proposed formulas for judging partisanship. The Court did not do so in either case. That set the stage for a new attempt, by one side or the other in the ongoing controversy, to take a new case to the Justices in their new term, just opened this week.
That attempt was due to arrive at the Court on Monday, and it apparently has, although the Court’s formal docket does not show it yet. It will do so soon.
Pursuing the new appeal are four Republican members of the North Carolina legislature, two each from the lower and upper houses. Two of the four were directly involved in drawing new maps in 2016 for the election districts for the state’s 13-seat delegation in the U.S. House, and the other two lawmakers are the leaders of their chambers.
The process, the two map-drawing lawmakers have said publicly, was designed to assure that Republicans would continue to win 10 of the 13 House seats, with three to be won by Democrats. The plan has produced that exact result in three separate elections, even though the statewide voting totals between the two main political parties are just about even.
The GOP legislators’ new appeal to the Justices is challenging a decision in August by a special three-judge federal trial court sitting in Greensboro. Although the judges were divided 2-to-1 on several key points, the actual outcome was that the 2016 plan was found to be an unconstitutional partisan gerrymander. That court allowed it to be used again in this November’s election but not in any future election.
The two judges in the majority ruled not only that the voters and civic organizations who had sued to challenge the 2016 maps had been harmed enough that they had a right to file their claims against it, but also declared that the resulting map violated the federal Constitution four different ways.
One was based on a finding of violating Democratic voters’ right to legal equality, one was found to violate those voters’ First Amendment rights to express their political views and to align with each other in joint political action, and two were based on the Constitution’s Elections Clause.
That Clause gives state legislatures the initial duty to draw up new election districts for the House of Representatives with a backup veto power for Congress. The Supreme Court has never before faced a partisan gerrymandering case in which the Elections Clause was used against a claimed partisan map, and the four North Carolina lawmakers’ new appeal relies heavily upon their complaint that the Clause can’t be used that way.
Basically, the appeal has three major parts to it: First, it argues that none of the challengers had any right to sue. That is based on the contention that none of them has been able to prove that their rights as voters were violated by the partisan character of the resulting maps. If the Justices agreed with that argument, the Court would have no jurisdiction to rule, so this case would be over without a ruling on the partisanship question.
Second, the appeal – in its broadest argument -- asserts that the Court simply has no way to fashion a remedy for partisan gerrymandering, and thus that claim is not one that any federal court can hear and decide. Technically, this is the question of whether such a challenge is "justiciable," which means whether the case raises an issue that the Constitution assigns to the courts or handed it to the other branches of the government. If the Justices accepted that plea, the case again would be at an end: there would be no authority to apply a non-existent standard.
Third, the lawmakers argue that, even if the Court could come up with a workable formula for judging partisanship, the North Carolina maps would not violate any such standard because the partisan politics that drove the choice were well within the tradition of American politics. This is somewhat of a backup argument, which seeks to have the Court uphold the 2016 plan if it settles the dispute over whether it even has the power to decide this case.
The voters and civic groups that won the case in the Greensboro court have 30 days to file their response to the appeal, and then the GOP lawmakers get a chance to file a final reply. After those papers are filed, the Justices will then decide whether they are actually going to hear and decide the case.
They first have to decide whether they have the authority to take on the case; that involves the two jurisdictional questions, including the crucial one about whether a constitutional standard for judging partisanship can be devised. They could agree to hear the case and postpone until that hearing whether they do have jurisdiction.
Under a special federal law governing the Supreme Court’s handling of election district map-drawing, the Court does not have the option as it does on almost all other types of cases of simply declining review, without any comment or reasoning. It must act on the case in other, more definitive ways. It would take five votes, in the end, to overturn the Greensboro court’s decision or five votes to uphold that decision.
The initial consideration of what to do with the North Carolina case is not likely until after this year’s congressional elections on November 6. Whether there is a ninth Justice on the bench when the case does reach that initial consideration is thus one of major importance.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
