US Presidency: Rulings on gerrymandering take democracy a step backwards but two forwards
The North Carolina Republicans who re-drew their state’s Congressional lines never hid their motivation. ‘I think electing Republicans is better than electing Democrats,” state legislator David Lewis admitted without embarrassment. When asked to justify one party winning 10 of 13 seats, he lamented that even a computer couldn’t draw a map with 11 Republicans and 2 Democrats in such an evenly-divided state.
The North Carolina map again performed as designed when the state elected a tenth Republican to the US House of Representatives on 10 Sept, in a re-run of a 2018 race voided due to voter fraud. Statewide, the gerrymander turned a two-point advantage in the popular vote into a 54-point difference in Congressional representation (77%-23%).
North Carolina’s seemed the perfect case to persuade the US Supreme Court to limit partisan redistricting. The Court had long teased voting reformers, hinting that it might do so throughout Anthony Kennedy’s 30 years as Justice. But by the time the North Carolina case reached the Court, Justice Kennedy was gone.
“Ruling against us while admitting that political gerrymandering is undemocratic, he says, that was hard to take
Bob Phillips
Executive Director, Common Cause North Carolina
On 27 June, Chief Justice John Roberts, joined by the other 4 sitting Republican appointees, delivered their judgment in Rucho v Common Cause. They conceded that excessive partisan redistricting is ‘incompatible with democratic principles.’ However, they hastened to add, that doesn’t mean US courts can solve the problem. The majority held that partisan gerrymanders present ‘political questions beyond the reach of the federal courts.’
Common Cause’s North Carolina executive director Bob Phillips felt like he was punched in the gut. ‘Ruling against us while admitting that political gerrymandering is undemocratic,’ he says, ‘that was hard to take.’ But Phillips soon found two silver linings.
Within hours, the Supreme Court ruled in the reformers’ favour in the term’s other big voting rights case. In Department of Commerce v New York, the Court remanded to the agency its decision to put a citizenship question on the 2020 Census form. With the printing deadline only days away, this effectively killed the Census citizenship question.
Trump administration officials were rather less forthright about their motive than North Carolina Republicans. They had repeatedly sworn that their only goal in gathering citizenship data was to strengthen enforcement of the Voting Rights Act. But the Census Bureau’s own experts estimated that the threat of deporting noncitizens would so frighten Latino residents as to cause an undercount of 9 million people. The result would be to systematically steer electoral votes, congressional seats, and federal funding away from Democratic states with heavier Latino populations.
At the last hour, the true rationale was confirmed. Thomas Hofeller had been the Republican guru behind both the North Carolina gerrymanders and the Census citizenship question. After his death, Hofeller’s estranged daughter called his adversaries at Common Cause, and leaked them his files. In a secret strategy memo, Hofeller had written that a Census citizenship question ‘would be advantageous to Republicans and non-Hispanic whites.’
This unlikely confession may well have swung the result in the year’s most consequential case, as the Court rejected the official explanation for the Census Bureau adding a citizenship question. ‘The Census is the very first thing the government is told to do in the Constitution because it’s the basis of all representation,’ says Justin Levitt, who led the Obama Justice Department voting rights unit. ‘The Census is our portrait of who we are. What this decision did is give us a fighting chance to get it right.’
The second consolation for voting reformers is that the Supreme Court identified other avenues for gerrymander reform. ‘The Chief Justice said states can solve the problem,’ notes Phillips, of Common Cause in Raleigh, ‘and we happened to have the first state case in the pipeline.’
On 3 September, Common Cause prevailed before three state judges in their challenge to North Carolina Republicans’ partisan gerrymander of the state legislature (as opposed to Congress). Interpreting the state constitution’s guarantee that ‘All elections shall be free,’ Lewis v Common Cause held that the maps offended ‘the fundamental right … to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.’ After all, ‘It is not the will of the people that is fairly ascertained through extreme partisan gerrymandering,’ the judges reasoned. ‘Rather, it is the will of the map drawers’. The judges further held that the maps violated the rights to equal protection, and freedom of speech and assembly.”
North Carolina Republicans have said they will not appeal the ruling to North Carolina’s Supreme Court, which has a strong Democratic majority. The trial court is allowing the North Carolina Republicans to take a first stab at re-drawing the maps. But if they push another partisan proposal, Common Cause will ask the court to tap an independent special master to draw the new maps.
Voting advocates may yet ask a state court to reexamine the Raleigh Republicans’ congressional gerrymander under state law. Such a strategy succeeded in Pennsylvania, and in principle, Phillips said, it would be highly promising in North Carolina.
At the same time, the President can bring his own lost battles to the states. Soon after the Supreme Court’s census ruling, the President issued an Executive Order on Collecting Information about Citizenship Status. Now that the Census can’t gather citizenship figures directly, the plan is to impute them from passport or social security records and the like. If the President is reelected, then Republican states with large Latino populations may use that data to shape state legislatures to their liking. If so, the voting rights advocates will be ready. ‘There was always going to be a second fight over the use states may make of citizenship data,’ says senior counsel Michael Li of the Brennan Center’s Democracy Program. ‘We are still going to have that fight.’