By Margaret Potter, Blog Editor
On October 28, 2019, a North Carolina state court ruled that the state’s current congressional district maps could not be used in the upcoming March primaries.[1] The three-judge panel in Wake County ruled that proceeding with the current congressional maps would be “improper”.[2] In response to this ruling, the North Carolina State Board of Elections determined the legislature must act quickly to re-draw the maps, stating that the redrawing must be finalized by December 15, 2019.[3] With this recent holding in North Carolina, in addition to the Supreme Court’s June 2019 decision regarding gerrymandering in Rucho v. Common Cause, many speculate what the future has in store for gerrymandering and what impact rulings such as these could have on the future of our elections.[4]
The road leading to the October 28 ruling in North Carolina began in 1788, when Patrick Henry, a member of Virginia’s legislature, drew congressional maps with the sole intention of barring James Madison from winning a seat in Congress.[5] Following Henry’s lead, Elbridge Gerry in 1812, while serving as the governor of Massachusetts, signed a bill permitting his party, the Democratic-Republicans, to draw state senatorial maps designed to favor Democratic-Republican candidates.[6] Upon its execution in the 18th century, gerrymandering in the United States became the practice of drawing legislative districts with the objective to ensure as many secured seats as possible by a certain political party.[7] Gerrymanders can accomplish this objective through two methods; packing and cracking. Packing refers to drawing legislative maps to include as many of the opposing party’s voters as possible within that boundary, thus helping the party in power to win surrounding districts where the opposing party’s strength has been significantly diluted through packing the district.[8] The other method, cracking, requires splitting up areas with a large population of the opposing party’s voters into several smaller districts, to ensure that these voters are outnumbered by voters favoring the party in power.[9]
In 1962, the Supreme Court ruled in Baker v. Carr that states must redistrict every ten years to modify maps according to population shifts while keeping every district closely equal.[10] To achieve shifting populations, congressional redistricting must occur every ten years following the census.[11] However, while requiring redistricting every ten years, states are prohibited from drawing maps that discriminate based on race.[12] As outlined by the Voting Rights Act of 1965, legislative maps cannot be used to dilute minority voters.[13] Yet, the Supreme Court has not deemed it unconstitutional to redistrict based on political party.[14]
Partisan gerrymandering efforts came to a head in 2010, at which point states were able to redraw state’s legislative districts following the census.[15] A Republican program, Project Redmap, began targeting small state legislative races to gain control to set forth the respective state’s district maps.[16] The program was created by former Republic National Committee chairman Ed Gillespie, and according to its website, “[t]he party controlling that effort controls the drawing of the maps – shaping the political landscape for the next 10 years.”[17] In 2010, with the implementation of Project Redmap, Republicans outspent Democrats by over $300 million in gubernatorial races.[19] As a result of Project Redmap, Republicans flipped almost 700 state legislative seats, including gubernatorial control in Wisconsin, Ohio, Michigan, and Pennsylvania.[19] A large contributor to Republican success in 2010 came as the result of utilizing sophisticated software providing increased information regarding the geographic location of voters in addition to census data.[20]
Also occurring in 2010 was the redrawing of congressional district maps in North Carolina, an effort led by state Republicans.[21] The district court ruled that the 2010 maps were unconstitutional by packing black voters into specific districts while diluting black voter strength in others, thus the maps were found to gerrymander based on race, a prohibited practice.[22] In 2017, the Supreme Court upheld the district court’s ruling in Cooper v. Harris.[23] After the order to redraw the racially gerrymandered maps, North Carolina’s legislature designed the current maps in 2016, which include ten republican and three democratic districts.[24] Republic Representative David Lewis from North Carolina stated at the time, “I think electing Republicans is better than electing Democrats” and that drawing the 2016 maps “helped foster what I think is better for the country.”[25] Following backlash from these comments, Lewis declared that he was joking at the time.[26] On the other hand, North Carolina Democrats argued that the 2016 maps reflected biased, partisan gerrymandering.[27]
Although partisan gerrymandering tends to be most prevalent in states with Republican legislators holding control, gerrymandering exists on both sides of the aisle.[28] In Maryland, Democrats have used gerrymandering to its advantage through redistricting an area, specifically the sixth congressional district, to favor democratic voters.[29] Through reconfiguration efforts, Democrats have flipped the district from 47% Republican/36% Democrat to 45% Democrat/34% Republican.[30]
As a result of rampant partisan gerrymandering, the Supreme Court granted cert in Ruccho to determine whether congressional district maps in Maryland and North Carolina were drawn specifically to favor one political party and whether this practice should be allowed.[31] The Court held that the determination of gerrymandering as an acceptable practice was a political question, not a judicial question and thus not answerable by a federal court.[32] However, the Court stated “[o]ur conclusions does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.”[33] Thus, although ruling that the question of gerrymandering cannot be answered by federal courts, the Court ruled “[p]rovisions in state statutes and state constitutions may provide standards and guidance for state courts to apply in addressing the issue of excessive partisan gerrymandering in the drawing of legislative districts.”[34] Therefore, the Court allocated the power to rule on the permissibility of gerrymandering to state courts.[35]
Predating the Court’s holding in Ruccho, Pennsylvania used its state constitution to invalidate partisan legislative districts.[36] Advocates against gerrymandering used Pennsylvania Constitution, Article I, Section 5 to invalidate partisan maps, which states; “[e]lections shall be free and equal, and no power, civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.”[37] Using this state constitutional provision, the Pennsylvania Supreme Court upheld the lower court’s finding that the partisan-gerrymandered maps were unconstitutional under Article I, Section 5.[38] Because the Court in Ruccho held that states may invalidate gerrymandering under state statutes and constitutions, the Pennsylvania Supreme Court’s ruling is unaffected by Ruccho.[39]
Using the same state constitutional argument utilized in Pennsylvania, the petitioner in North Carolina argued that the legislative map violated the constitution, specifically, Article I Section 10, which states “[a]ll elections shall be free.”[40] As is the case in Pennsylvania, the North Carolina court’s holding is in accordance with Ruccho.[41]
Although the Court’s holding in Ruccho was viewed by some as a blow to those advocating against partisan gerrymandering practices, the holding in North Carolina reflects that gerrymandering is not untouchable, as long as arguments against the practice are on the basis of state statutes and constitutions.[42] With the 2020 census coming up, the 31 states in which state legislatures draw their own legislative districts could face potential challenges to district maps and as a result, will continue to bring into question the practice of gerrymandering in the United States.[43]
[1] Ally Mutnik & Steven Shepard, Court freezes North Carolina’s gerrymandered map, Politico (October 29, 2019, 12:30 AM EDT), https://www.politico.com/news/2019/10/28/court-north-carolina-gerrymandering-060677.
[2] Id.
[3] Gregg Re, North Carolina judges toss GOP’s ‘gerrymandered’ districts, in major win for Eric Holder initiative, Fox News (October 28, 2019), https://www.foxnews.com/politics/north-carolina-judges-gerrymandered-gop-friendly-districting-eric-holder.
[4] Pete Williams, Court throws out North Carolina’s Republican-drawn congressional district maps, NBC News (October 29, 2019, 8:05 AM EDT), https://www.nbcnews.com/politics/elections/court-throws-out-north-carolina-s-congressional-district-maps-n1073081.
[5] Richard Labunski, How a Gerrymander Nearly Cost Us the Bill of Rights, Politico (Aug. 18, 2019), https://www.politico.com/magazine/story/2019/08/18/gerrymander-the-bill-of-rights-227626.
[6] Michael Wines, What is Gerrymandering? And Why Did the Supreme Court Rule on It?, New York Times (June 27, 2019), https://www.nytimes.com/2019/06/27/us/what-is-gerrymandering.html.
[8] Id.
[9] Id.
[10] Vann R. Newkrik II, How Redistricting Became a Technological Arms Race, The Atlantic (Oct. 28, 2017), https://www.theatlantic.com/politics/archive/2017/10/gerrymandering-technology-redmap-2020/543888/.
[11] Jane C. Timm, Gerrymandering fallout: GOP House seats at risk in N. Carolina when new maps are drawn, NBC News (Nov. 3, 2019, 9:54 EST), https://www.nbcnews.com/politics/2020-election/gerrymandering-fallout-gop-house-seats-risk-n-carolina-when-new-n1074181.
[12] Newkrik II, supra note 10.
[13] Id.
[14] Wines, supra note 6.
[15] Id.
[16] Timm, supra note 11.
[17] Project Redmap, The Redistricting Majority Project, http://www.redistrictingmajorityproject.com/.
[18] Newkrik II, supra note 10.
[19] Id.
[21] Timm, supra note 11.
[22] Newkrik II, supra note 10.
[23] Id.
[24] Williams, supra note 4.
[25] Id.
[26] Re, supra note 3.
[27] Id.
[28] Jeff Barker, U.S. Supreme Court tackles Maryland gerrymandering case that’s split Democrats and Republicans, The Baltimore Sun (March 26, 2019), https://www.baltimoresun.com/politics/bs-md-redistricting-hogan-20190326-story.html.
[29] Id.
[30] Id.
[31] Wines, supra note 11.
[32] Id.
[33] Ruccho v. Common Clause, 139 U.S. 2484, 2507 (U.S. 2019).
[34] Id.
[35] Wines, supra note 11.
[37]Jonathan Lai, The legal team in Pa. gerrymandering case set their sights on N.C. They just won again, The Inquirer (September 4, 2019), https://www.inquirer.com/politics/pennsylvania/nc-gerrymandering-case-used-pa-model-20190904.html
[38] Wines, supra note 11.
[39] Id.
[40] Jonathan Lai, supra note 37.
[41] Mutnik & Shepard, supra note 1.
[42] Gretchen Frazee & Laura Santhanam, What the Supreme Court’s gerrymandering decision means for 2020, PBS (June 28, 2019, 5:51 PM EST), https://www.pbs.org/newshour/nation/what-the-supreme-courts-gerrymandering-decision-means-for-2020.
[43] Id.
