Constitution Daily

Smart conversation from the National Constitution Center

Latest partisan gerrymandering decision adds to growing debate

January 10, 2018 by NCC Staff


A federal court ruling on Tuesday adds a new wrinkle to the national debate about the practice of gerrymandering voting districts to ensure desirable outcomes in elections.

In a 205-page opinion, Judge James A. Wynn Jr. writing for a three-judge panel ruled that election maps drawn in North Carolina favored Republican candidates.

The judges agreed the current map violated the Equal Protection clauses of the Constitution. “On its most fundamental level, partisan gerrymandering violates ‘the core principle of republican government . . . that the voters should choose their representatives, not the other way around,’” Wynn said.

In the past, there have been allegations that both major parties in North Carolina redrew election maps to their liking.

There are currently two cases at the United States Supreme Court about gerrymandering based on political grounds. (Other claims against gerrymandering are based on allegations that election districts were biased against minorities.)

Legal experts on Wednesday were speculating that North Carolina decision could soon arrive at the Supreme Court as a third gerrymandering case for the nine Justices.

In Gill v. Whitford, the justices heard arguments in October about claims of extreme partisan gerrymandering in Wisconsin.  In a surprise move, the Court last month expanded its review of gerrymandering by taking on a claim by seven Maryland voters.

Constitution Daily contributor Lyle Denniston wrote for us last month about the significance of the Court’s decision to expand its consideration of partisan gerrymandering cases.

“The Court apparently is not yet ready to release a decision in the Wisconsin case, and that was one factor that made it a surprise that they were willing to move into the Maryland case now.  It is quite common, when the Court already is reviewing a case raising an issue to hold other cases raising the same or a similar issue until after the initial one has been decided,” he wrote.

“Although the order accepting the case did not give a reason for that, one possible explanation is that the Justices may have looked at it in comparison to the Wisconsin case and decided that the ruling they are preparing would not necessarily fit the Maryland case, too,” he said.

Adding the North Carolina case to the two other cases would expand the Court’s debate about its ability to come up with a concrete rule that would determine partisan gerrymandering cases.

The Supreme Court has never struck down districting maps on a partisan basis due to the lack of a formula to determine excess partisanship.

In prior cases, Justice Anthony M. Kennedy has argued that such a rule might be possible to construct. He wrote in a 2004 decision called Veith v. Jubelier from 2004 that the courts could consider partisan gerrymandering cases in the future; in the Veith case, Kennedy agreed with a plurality of Justices that the Veith case itself wasn’t justiciable In Veith, Justice Antonin Scalia argued that no formula could be found to settle partisan gerrymandering claims since they were political issues in nature and not subject to a Supreme Court decision.


Sign up for our email newsletter