High court ruling opens next front in gerrymandering wars

High court ruling opens next front in gerrymandering wars
© Greg Nash

The Supreme Court’s Monday decision to strike down a North Carolina congressional district map is being hailed as a victory for voting rights advocates — though some caution that the path ahead for Democrats fighting gerrymandering has just become more treacherous.

The court’s decision in Cooper v. Harris found that North Carolina’s legislature had improperly considered race when it drew two congressional districts after the 2010 census. Justice Elena Kagan wrote the majority opinion with three liberal colleagues. Justice Clarence Thomas, the anchor of the court’s conservative wing, joined them.

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“The Supreme Court has now made it abundantly clear to Republican legislators that their cynical game of using race as an excuse to gerrymander is over, and that the courts are not going to sit by when challenges are brought,” said Marc Elias, the Democratic lawyer who argued the case. “And I plan on bringing those challenges.”

Elias said his phone has been “ringing off the hook” with calls from legislators who believe the decision could open their states to new legal challenges.

“We are looking for other places where Republican legislatures have committed the same legal error,” he said.

But Thomas’s concurring opinion offered a warning to those celebrating the ruling. In his opinion, Thomas said the North Carolina defendants improperly relied on the Voting Rights Act, which he believes does not apply to redistricting at all.

Justices Samuel Alito and Anthony Kennedy and Chief Justice John Roberts dissented. Justice Neil Gorsuch, who joined the Supreme Court after arguments in the North Carolina case, did not participate in the ruling. 

The ruling had no immediate impact on the state’s congressional district lines, because the legislature had redrawn those lines after a lower court ruled they were unconstitutional. Republican legislators only considered partisanship, not race, in redrawing districts held by Reps. Alma Adams (D), G. K. Butterfield (D) and David Price (D).

“In 2016, North Carolina [legislators] drew a new compact congressional map without considering race, and voters should know the congressional representatives elected under that map last November will continue to serve their current districts,” said Amy Auth, a spokeswoman for North Carolina Senate President Phil Berger (R), who pushed both redistricting plans.

The new maps maintained Republicans’ district advantage in North Carolina’s congressional delegation.

Justices will decide in conference on Friday how to act on a challenge to those new district lines. The justices can decide to summarily affirm or reverse a lower court ruling upholding the partisan gerrymandering or to schedule oral arguments next session.

“That’s the next question for the court,” Elias said. “The Supreme Court now has to decide how to handle the remedial map appeal, and it may be that will be the opportunity to decide how to handle partisan gerrymandering.”

That decision will likely set the stage for the next round of lawsuits over district maps to be drawn after the next Census in 2020.

“We don’t expect Gorsuch to vote with the liberals on these issues, so this is a fleeting win that is good for the remainder of this decade, but what’s going to happen after the next release of census data is probably more important in the long run,” said Michael McDonald, a University of Florida political scientist who has served as an expert witness in many redistricting lawsuits.

The decision is likely to impact another case in which Democrats say Republicans improperly considered race when drawing district lines, this one in Texas. A three-judge panel overseeing the case asked both sides for briefs analyzing the North Carolina decision and how it might impact the Texas case, and it suggested attorneys defending the legislature might want to ask their clients to hold a special session on redistricting.

“The fact that the Texas court on its own initiative told the state to confer with their clients about whether to surrender and voluntarily redistrict is a pretty good indicator of where the court’s thinking is in light of the Cooper decision,” Elias said.

Monday’s ruling, and its hints about the court’s future direction, highlights the stakes for both Democrats and Republicans in the 2018 midterm elections and the 2020 presidential contest. Redistricting will occur in the run-up to the 2022 midterm elections. In most states, the state legislature draws maps that are subject to a governor’s veto.

At the moment, 24 states are wholly controlled by Republican governors and legislative majorities. That includes states such as Ohio, North Carolina, Florida, Georgia and Texas, where legislative and congressional district lines strongly favor Republicans.

Democrats have total control of just five states: California, Oregon, Connecticut, Hawaii and Rhode Island. California draws its district lines through a bipartisan commission.

Voters will elect governors in 38 states over the next two years. Republicans are defending 14 open seats in states where governors are retiring, and another 13 Republican incumbents will seek reelection. Democrats must defend five open seats and five incumbents. Alaska’s independent governor is also up for reelection in 2018.

In many states where legislative district lines give Republicans an advantage, winning back governorships is Democrats’ only hope of securing a seat at the redistricting table.

“If Democrats are going to be able to block partisan gerrymanders from Republicans, they’re going to have to win statewide office in key states where Republicans control the process,” McDonald said.

Several other redistricting-related cases are working their way through various court challenges. In Alabama, the legislature is working to overhaul some of its districts, and a lower court is considering district lines in Virginia’s House of Delegates. 

The Supreme Court will consider early next month whether to review a lower court’s decision striking down Wisconsin’s state legislative map over partisan gerrymandering concerns.