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Answers, and new questions, on partisan gerrymandering

June 7, 2017 by Lyle Denniston


Both sides in a new Supreme Court test case on partisan gerrymandering – drawing new election districts to favor one party – on Tuesday answered the Justices’ questions about whether the case should stay alive, disagreeing sharply on that.

But they also may have raised a broad new question about what voters challenging such partisan-driven maps must do to make a case.  If the Justices feel they have to rule on that issue, it could make a major difference to the future of such disputes.

Besides that added issue, the two sides’ new briefs may have stirred up a new controversy over who speaks for North Carolina in election cases.  That is a complication that led the Justices to refuse last month to decide a major voting rights case from the same state.

All of this comes about because the court has recently begun to ponder what to do with the case titled Harris v. Cooper.  That involves a new attempt by election law specialists to try to persuade the Justices to settle a long-standing question of whether the federal courts have any authority to rule on the constitutionality of partisan gerrymanders – a common thing not only in modern politics, but throughout American political history.

The court has never declared flatly that no such constitutional case could ever go forward, but it has said it has not been able, so far, to find a workable formula on how to judge when there has been too much emphasis on party advantage in the redistricting process that takes place after every ten-year Census.

The new Harris case was taken to the Supreme Court last August by two North Carolina Democratic voters, claiming that a Republican-engineered gerrymander led to the creation of maps to assure that the GOP would win 10 of the state’s 13 seats in the U.S. House of Representatives.  A three-judge federal trial court had ruled against the claim, citing the Supreme Court’s past failure to recognize such challenges.

The Justices did not do anything with the voters’ partisan gerrymandering appeal for months, holding it until they had decided another claim that the two voters had made at an earlier point in the same case: that two of the congressional districts’ maps were invalid as racial gerrymanders.  The Supreme Court upheld that claim (in a ruling titled Cooper v. Harris) on May 22.

Almost immediately, the Justices turned to the separate petition raising the partisan claim.  They promptly ordered both sides to file new briefs answering two questions: did the two voters have a right to bring their partisan gerrymander claim (“standing to sue”), and did they have a right to appeal the trial court’s ruling directly to the Supreme Court.  A “no” answer by the court to either question would scuttle the case before the Justices.

In the new filing by lawyers for the two voters, they suggested that the answer should be “yes” to both questions: because the two voters had properly shown they would be harmed by the partisan congressional maps, and because the trial court had ruled against them, making its decision clear even though, they conceded, the court did not do so with the specific kind of order that the law governing such appeals might require.

In the new filing by the state Board of Elections, its lawyers suggested “no” as the answer to each question: because the two voters had not shown how they would be harmed, because they did not even show that they were Democrats or that they lived in districts that had been gerrymandered, and because the law on appeals in such cases is clear about the kind of lower court order that must be issued to resolve the case in the trial court.

In the pages of those two filings, though, the disagreement ran deeper.  The voters’ lawyers argued that they had a right to challenge the entire North Carolina congressional map, on a statewide basis, and that they had shown that they would be harmed as Democrats by the partisan project.  The attorneys for the Board of Elections argued that redistricting cases can only be brought to challenge a specific district’s lines, not a statewide map.  That has always been true, that filing said, for racial gerrymander cases, and should also be true for partisan gerrymander cases.

That is a major issue, because it very likely would be easier, in a partisan gerrymander case, to show the partisan effects of a statewide plan because partisanship could affect the degree to which a state’s political party could be denied representation on a basis reflecting its actual numbers statewide.  The standard for judging partisanship might well be a fairly easy one to fashion, because partisan skewing could be more readily shown as the map-drawers shifted voters from district to district to aid one party over the other across the expanse of the state.  If such a case is keyed only to district-based claims, each challenging voter would have to show that they, individually, had been denied proper representation in their own district.

The two voters’ lawyers argued that the court need not resolve the district-only versus statewide question on partisan gerrymandering, since they contended that the voters had the right to sue even if the test was district-based – a claim that the Board’s lawyers strenuously disputed.

That is the most consequential issue that might have surfaced in the new filings.  But the problem of who speaks for North Carolina, as a legal matter, has risen up again between the lines of the two new filings.

The “Cooper” whose name is in the title of this case, and of the earlier one decided in May, is Roy Cooper, who is the new Democratic governor of North Carolina, succeeding a Republican governor whom he defeated and who had been sued in the case by the two voters.

The voters’ lawyers noted in their filing that the state Board of Elections – also sued, along with the governor – no longer exists in North Carolina (it has been replaced by a new agency not yet in place), so Governor Cooper, the filing suggested, is the only party representing the state still in the case.

The Board’s filing was done by the lawyers in the name of that agency before it was abolished by the state legislature.  It does note, in a footnote at the end, that Governor Cooper “does not join this brief,” adding that he “does not object” to the views spelled out on the two questions by lawyers for the two voters.

Is there, any longer, two sides to the dispute on the partisanship issue?  If not, is there any controversy remaining?

The Justices may have the option of looking past this new complication, but they did not do so last month on the major case on voting rights in North Carolina.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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