Michael Goldhaber, IBA US Correspondent
Thursday 15 November 2018
On 7 November, the predicted Democratic wave swept every statewide race in the purple state of Wisconsin, including the contests for governor, attorney general and US senator. Nevertheless, due to redistricting, Republicans maintained their dominance of Wisconsin’s congressional delegation, and only strengthened their iron grip on Wisconsin’s state legislature.
Wisconsin’s result was not difficult to foresee, as the Supreme Court in June put off for another time a ruling on the constitutionality of voting districts designed to amplify one party’s political power – partisan gerrymandering – relating to the state. (See related links)
Nationwide, the Democrats appear to have overcome their disadvantage in the House of Representatives, because a rare realignment tipped enough districts that had been engineered to be narrowly Republican. But the gerrymanders held in key states like Wisconsin and Ohio, or like North Carolina, where Republicans turned a 50-50 vote into 77 percent of seats.
Voting rights advocates say gerrymandering largely succeeded in frustrating the popular will over the decade since the last census. To stop this erosion of democracy from repeating over the next decade, voting rights advocates are pushing a variety of strategies.
The quickest path back to power is to start winning again. By capturing the governor’s seat this year – as the Democrats did in Wisconsin – a gerrymandered minority can gain a precious seat at the table for redistricting after the 2020 census.
“Everyone seems to have an intuition that something's wrong here, so there are opportunities to build judicial coalitions that are larger than left to right
Counsel, Brennan Center for Justice, NYU School of Law
On 7 November Democrats also broke the Republican monopoly on power in Kansas, Michigan, and New Hampshire. However, in the big gerrymandered states of Florida and Ohio, Democrats fell short in the gubernatorial elections, and Republicans preserved the ‘trifecta’ of complete political control. (Though at time of writing Florida was pending a recount).
A second strategy is for the people to limit politicians’ power to draw new maps. Voters on 7 November approved gerrymander reform in each state where it was on the ballot: Colorado, Michigan, Missouri and Utah. Reformers who favor compromise are especially fond of Michigan’s redistricting commission, where new maps must be blessed by a majority with at least two Republican, two Democratic, and two unaffiliated commissioners. But most states don’t allow ballot measures.
A third way to attack gerrymanders is to sue under your state’s constitution. Pennsylvania’s Supreme Court ordered a new congressional map drawn in January, and on 29 October, the US Supreme Court declined to step in. The result on Election Day was to flip three seats in the US House of Representatives, making Pennsylvania a rare purple state that sends a purple delegation to Congress. However, most state courts are hostile.
That leaves the US Supreme Court, where reformers now pin their hopes on North Carolina – an evenly-divided state where even this Election Day, Republicans kept a 10-3 edge in Congress.
On 27 August, a federal trial court rejected North Carolina’s maps in in Rucho v Common Cause. This autumn the parties are briefing a petition for Supreme Court review. To act before the next decade of gerrymandering, the Court probably needs to rule on the merits by June. Or, by declining review, it could effectively reject North Carolina’s maps without formulating a test.
All justices have agreed since 2004 that ‘excessive injection of politics in electoral process is unconstitutional,’ says Professor Justin Levitt, who, as former Deputy Assistant Attorney General in the United States Department of Justice Civil Rights Division, oversaw voting rights. ‘They just split like crazy on how you know it’s excessive and which branch should be able to say so.’ One theory as to why they declined to address the merits in Wisconsin is that they couldn’t construct a majority, either to craft a judicial test for partisan gerrymandering, or to call it non-justiciable.
Pessimistic reformers say their cause is now lost, because Justice Anthony Kennedy – who teased a generation of lawyers with progressive hints on the issue – retired days after the Wisconsin ruling. The pessimists write off the Chief Justice – the Court’s new swing vote – because he dismissed the Wisconsin plaintiffs’ judicial tests as ‘sociological gobbledygook.’
The North Carolina plaintiffs’ lawyer, Allison Riggs of the Southern Coalition for Justice, believes Rucho is the perfect vehicle for change. Legally, it lacks the standing problem that gave the justices a reason to defer Wisconsin, because the plaintiffs include voters from every district. Factually, ‘what happened in North Carolina is more egregious,’ she says – ‘so egregious that you don't need to know where the line is.’
The Republican state legislator who led redistricting in Raleigh gave reformers the gift of confessing to partisan gerrymandering as he did it, because at the time he was worried about being accused of racial gerrymandering. Asked why his congressional map split the state between 10 Republicans and 3 Democrats, Rep. David Lewis cheerfully replied that it was impossible ‘to draw a map with 11 Republicans and 2 Democrats.’ In sum, he said, ‘this would be a political gerrymander.’
Professor Levitt, who now teaches constitutional law at Loyola Law School in Los Angeles, likens Rep. Lewis to a reckless driver who is pulled over and says, ‘I’m drunk’; You don’t need a blood alcohol test to determine his guilt. Indeed, North Carolina brings to life an extreme hypothetical posed at Wisconsin’s oral argument. What if a state admitted using all traditional redistricting criteria to deliver maximum advantage to one party? asked Justice Kennedy. The attorney for Wisconsin’s legislature replied that it would be unconstitutional.
‘The principle that government shouldn’t act against you based on politics is a deeply shared notion among conservatives and liberals,’ says Levitt. ‘I don’t count the Supreme Court as lost on this issue.’
Thomas Wolf, Counsel with the Democracy program at the Brennan Center for Justice, agrees: ‘Everyone seems to have an intuition that something's wrong here, so there are opportunities to build judicial coalitions that are larger than left to right.’
Riggs may soon have a chance to find out, and she too is optimistic. ‘We believe we can convince folks,’ she says. ‘I don’t count the Chief as lost. I don’t count Justice Kavanaugh as lost. Kavanaugh said he'll be an impartial listener and we'll take him at his word. The Supreme Court, the Chief and Justice Kavanaugh are aggressively looking for opportunities to look non-partisan. This is an opportunity.’