Constitution Daily

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Partisan gerrymandering on fast track to Supreme Court

September 13, 2018 by Lyle Denniston

 

The Supreme Court will get another chance in its next term to decide the long-unresolved question of whether partisan gerrymandering violates the Constitution.  In a new order in a North Carolina case, a lower federal court on Wednesday put that case on a fast track to reach the Justices even as their new term opens in early October.

With the agreement of all parties involved, the three-judge federal trial court in Greensboro, N.C., gave Republican state legislative leaders only until October 1 to file their appeal to the Supreme Court; this is less than half the usual time allowed.  That deadline and other new demands by the court were designed to help ensure that the Justices would decide the case at their next term, which opens October 3.

The state GOP lawmakers’ appeal will challenge the trial court’s August 27 decision striking down a Republican-fashioned, two-year-old election map for the state’s 13 seats in the U.S. House of Representatives.  Under Wednesday’s order, that ruling will not be put into effect while the case proceeds in the Supreme Court.

Besides shortening the time for that appeal to be filed, the Greensboro court also ordered the lawmakers not to seek any delays in the case as it moves through the Supreme Court. 

Two of the three judges added another condition: if the legislators disobeyed Wednesday’s order on what they must now do, the trial court would go forward on its own to draw a new map of districts to replace the 2016 plan and hinted that it might refuse even to consider any alternative map suggested by the lawmakers.  The third judge, expressing some doubt about whether partisan gerrymandering challenges can ever be pursued in court, did not go along with that part of the order.

The 2016 map has been used in three elections since then and, each time, Republican candidates have won 10 of the 13 seats even though statewide voting totals for the two parties have been close to equal.   The map, which the lower court is allowing the state to use again in the general election on November 6, is almost certain to result once more in the same 10-to-3 GOP outcome.

That map, the trial court ruled last month, violates three separate provisions of the U.S. Constitution because it is a partisan gerrymander, put together with the specific intent of giving the Republicans a durable dominance of the state’s delegation in the House and discriminating against the state’s Democratic voters.

The North Carolina case has long been considered a strong one for testing the constitutionality of partisan gerrymandering, because of the frank statements of a state GOP legislative leader that his team was aiming at the 10-to-3 split and actually would have preferred to fashion an 11-to-2 split but just could not figure out a way to do that.  That lawmaker also proclaimed that the state is just better off if more Republicans than Democrats get elected.

The Supreme Court has been puzzling over constitutional challenges to partisan gerrymandering since 1986.  While it has never closed the federal courts to such challenges, it has not yet devised a formula for determining when partisanship in the districting process went too far.   It failed again to decide that issue at its last term when it sent back to lower courts cases involving claims of such gerrymandering in Maryland and Wisconsin.

One of the judges on the Greensboro court, District Judge William L. Osteen, Jr., issued a separate opinion Wednesday suggesting that the Supreme Court, in its decision last term in the Wisconsin case, Gill v. Whitford, had raised new “uncertainty in this area of the law.”   That was one of the reasons he agreed not to enforce for the time being his court’s ruling nullifying the 2016 plan.

In fact, Judge Osteen went so far as to suggest that the Supreme Court, in some future decision in this case or some other, “may ultimately conclude” that there is no way constitutionally for the courts to judge the constitutionality of any claim of partisan gerrymandering.

The Justices had the North Carolina case before them last term but opted to send it back to the Greensboro court for another look that would take into account the guidance that the Justices had provided, especially in the Wisconsin case.

The three-judge court had initially struck down the state’s 2016 House election map last January and then did so again in a speedy response last month after the case was returned to it by the Supreme Court.

In issuing its new order Wednesday, that court issued an opinion with a stern rebuke of lawyers for the Republican state lawmakers, concluding that they had inappropriately included in their court filings some bitter criticism of the new decision against the existing district plan.  The opinion not only challenged the truth and the ethical propriety of what the filings had accused the court of doing but also declared that they had wrongly used as legal evidence a Wall Street Journal editorial that had accused the court of “judicial gerrymandering.”  It did not impose any punishment of those lawyers, however.

When this case reaches the Supreme Court, the Justices will not have the usual discretion to simply grant or deny outright the coming appeal.  Redistricting cases involving Congress are a form of automatic appeal to the Supreme Court after being decided by a trial court, and the Justices are required to put such appeals on an expedited schedule.  The idea behind that arrangement is to assure that election controversies are resolved as quickly as possible.

It is possible that the Supreme Court will have a full bench of nine Justices when the North Carolina case is reviewed.  The Senate Judiciary Committee on Friday finished its hearings on President Trump’s nominee of Circuit Judge Brett M. Kavanaugh to replace retired Justice Anthony M. Kennedy.   It seems likely that the full Senate will vote on the Kavanaugh nomination before the North Carolina case would come up for a hearing before the Justices.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

 

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