New York Times
Congressional Maps, Warped by Partisan Intent or Drawn by
the Book?
January 12, 2018
by Michael Wines
WASHINGTON — On Tuesday, three federal judges in North Carolina threw
out the state’s congressional map because it was “motivated by invidious
partisan intent.” On Wednesday, another panel of judges in Pennsylvania
upheld that state’s map, with one arguing that such a political issue
was none of the courts’ business.
The two competing federal rulings in partisan gerrymander cases this
week underscore the courts’ angst over even getting involved in
political decisions, much less overturning them.
Both rulings are certain to draw the Supreme Court’s interest as it
mulls a resolution to the gerrymandering question. The Court, with two
other redistricting cases before it, is expected this spring to end a
decades-long debate over when and if judges should make decisions that
could reshape the country’s political landscape.
“You’re seeing how much turmoil there is now in the lower federal
courts, and how many federal judges believe the time has come for the
courts to impose substantial limits” on partisan gerrymanders, said
Richard H. Pildes, a scholar of the law of democracy at the New York
University School of Law.
Experts said that even if the Supreme Court chooses to limit partisan
gerrymandering, federal judges are unlikely to force a redrawing of
overly partisan maps in the middle of high-stakes midterm races. Legal
observers said they believed the courts would put off requiring new maps
until after the 2018 elections, or even until the next round of
redistricting begins following the 2020 census.
Continue reading the main story
Still, the courts’ increased focus on the issue reflects the
proliferation of extreme partisan gerrymanders — maps that do not merely
hobble political opponents, but effectively doom them to permanent
underrepresentation. And it points to growing concern that two tenets of
American democracy — the concepts of majority rule and protecting the
rights of minorities — are being supplanted by a third doctrine: the
winner takes all.
Only a decade ago, partisan gerrymandering appeared all but a dead legal
issue. This week’s rulings underscore its return to center stage in the
debate over the health of democracy — and how rapidly demands to rein it
in have grown.
Whether the Supreme Court justices agree that gerrymandering needs to be
curtailed remains an open question. Experts agree that the court’s four
liberal justices are prepared to rein in the practice, and that the
crucial question is whether Justice Anthony M. Kennedy, a moderate
conservative appointed by President Reagan, will join them, and even
bring another conservative with him.
Justice Kennedy did not tip his hand during oral argument last fall over
a Republican-drafted gerrymander of district maps for Wisconsin’s lower
house, the State Assembly. A second argument over a Democratic
gerrymander in Maryland that erased a Republican-held House seat will be
heard this year, and it is possible that the North Carolina or
Pennsylvania cases will be considered as well.
The breadth of those cases, with three involving Republican gerrymanders
in states that are major federal election battlegrounds, hints at the
national political stakes involved in a Supreme Court ruling.
On Thursday, Republican lawmakers in North Carolina urged the panel of
appellate judges to stay its ruling while the Supreme Court considered
the Wisconsin and Maryland gerrymandering cases.
They argued that there was “an extremely high likelihood” that in one or
both of those cases, the high court would rule in ways that would
require the judges who were considering any new North Carolina map to
“revisit” their decision.
The Republican lawmakers also complained that the appeals court’s
timeline threatened to create “mass confusion for voters and candidates”
in the midterm elections in the state.
Since 2010, when a wave of election victories in state legislatures gave the
Republican Party lopsided control of redistricting, the party has cemented its
political dominance of the House of Representatives. North Carolina is a classic
swing state, narrowly electing a Democratic governor in 2016 even as it narrowly
chose Donald Trump for president. But of its 13 House seats, only three are held
by Democrats — and that, a
Republican legislator said in 2016, was “because I do not believe it’s
possible to draw a map with 11 Republicans and two Democrats.”
Democrats have hardly shied from gerrymandering House maps in states like
Illinois and Maryland, where they control the levers of government, according to
David Wasserman, an editor at the nonpartisan Cook Political Report who tracks
House elections. Even so, he said, the larger number of Republican gerrymanders
accounts for roughly half of the 24-seat advantage the party now holds in the
House.
In the Pennsylvania case, challengers showed that the Republican legislature used
detailed data on the partisan and ethnic makeup of more than
9,000 voting districts to draw a map in 2011 that has limited Democrats to five
of the state’s 18 House seats since then, even though statewide elections tend
to split evenly between Republican and Democratic supporters.
The challengers argued that the map was an abuse of what is known as the elections
clause in Article 1 of the Constitution, which allows states to
set the rules for federal elections. Setting the rules, the plaintiffs said,
does not mean twisting them to ensure the defeat of political opponents.
Judge D. Brooks Smith, a Reagan appointee who is the chief judge of the United
States Court of Appeals for the Third Circuit, rejected that argument. “The
framers provided a check on state power within the text of the elections
clause,” he wrote, “but it is a political one — action by Congress.” There was
no room for the judiciary to enforce a limit of its own, Judge Smith argued.
The other judges on the panel disagreed. Judge Patty Shwartz sided with Judge
Smith in rejecting the gerrymandering claim, but flatly rejected the idea that
the courts had no role in settling elections-clause disputes. The problem in the
Pennsylvania case, she wrote, was that the plaintiffs offered no reasonable
standard for determining when a map was in violation.
In a 141-page dissent, the third judge on the panel, Judge Michael M. Baylson,
reviewed the evidence and reached another conclusion: the House map, he said,
violated long-accepted rules for redistricting, including requirements that
districts not be contorted to take in specific groups of voters without good
reason.
While the Pennsylvania ruling looked to the past, experts said, the North
Carolina decision drew on an explosion of recent research that has begun to
change legal minds on the constitutional question of partisan redistricting.
The North Carolina opinion cites an array of work by social scientists and
statistical experts that documents new methods of measuring the partisan impact
of political boundaries. The opinion draws on fresh historical research to argue
that partisan gerrymanders are not an accepted practice that the Founding
Fathers chose to overlook, but a clear threat to the checks and balances at the
heart of their new government.
Referring to a sheaf of historical research, Judge James A. Wynn of the United
States Court of Appeals for the Fourth Circuit wrote that the elections clause
allowed states to set procedural rules for elections, but did not allow them “to
disfavor the interests of supporters of a particular candidate or party in
drawing congressional districts.” The panel of judges gave the state’s
Republicans two weeks to devise a new map.
Edward B. Foley, a professor and election-law scholar at the Ohio State
University Moritz College of Law, suggested that the reliance on new historical
and social-science research was not accidental; rather, he said, it was meant
win over conservatives on the Supreme Court who have been loath to tinker with
past legal precedent or enmesh the court too deeply in political matters.
Those elements of the decision, Mr. Foley said, send a message to Supreme Court
conservatives. “We don’t know what will carry the day,” he said. “But it might
be that Chief Justice Roberts and Justice Alito” — Samuel Alito, named to the
court by President George W. Bush — “will be able to make peace with new
jurisprudence because of some of these newer arguments.”