Is The Tide Starting To Turn On Gerrymandering?
When the U.S. Supreme Court determined earlier this year it has no authority to intervene in partisan gerrymandering by state governments, that may have created an opportunity for courts to take more aggressive action to curtail the practice. How so? With the U.S. Supreme Court effectively taking itself out of the picture, state courts suddenly become the be-all and end-all in these matters. So once a state’s highest court has decided something now when it comes to partisan gerrymandering, that’s it. The Supreme Court’s already said it can’t get involved. And also that it’s appropriate for state courts to make these determinations based on states’ individual Constitutions.
We’ll get back to that in a second. Because what really attracted us to this story is how plainly a panel of state judges in North Carolina (Republican and Democratic both), put it when they threw out voting maps for state level legislative districts:
“[I]t is the carefully crafted maps, and not the will of the voters, that dictate the election outcomes in a significant number of legislative districts and, ultimately, the majority control of the General Assembly.”
YES. That’s what’s wrong with gerrymandering. Period.
The best response Republican state leadership could come up with is that the ruling goes against “legal precedent”. So what? (And keep in mind that this doesn’t impact districts for federal elections, which the U.S. Supreme Court in effect upheld when it refused to intervene.)
But, so far, so good: here’s a link to the judges’ meticulously detailed 357-page decision, which as we noted above is unanimous. North Carolina’s Republican dominated legislature is tasked with redrawing the map, and the judges gave it only 2-weeks to do so. They say they will take into account redistricting that might cause 2 incumbents to run against each other, but pretty much no other excuses. Perhaps the short time frame is designed to prevent crafty consultants from coming it and doing a different kind of gerrymander with the same ultimate effect. Perhaps it has to do with the fact that there’s not much time left before the 2020 race begins in earnest.
Interestingly, late Republican Strategist Tom Hofeller played a big part in this latest decision, or rather the cache of information turned over by his daughter after his death. Hofeller’s name is mentioned more than 200 times in the ruling. Which makes some sense, because Hofeller was hired by the Republican Party in North Carolina to draw up the maps that were just overturned, something the ruling examines in great detail. Hofeller’s influence, you may remember, was also central to the Supreme Court’s ruling not to allow a citizenship question in the 2020 census, after it found Hofeller advised Republicans that adding the question “would be advantageous to Republicans and non-Hispanic whites.” (Not a way of better enforcing the Voting Rights Act as Trump’s people contended.) The advocacy group, Common Cause, was intimately involved in releasing the Hofeller information that pertained to the Census decision. And it also brought the North Carolina case.
And that’s no coincidence: there’s a reason this happened in North Carolina first. It has a Democratic Governor, and it doesn’t have the judicial stranglehold other highly gerrymandered states do, to complement an imbalanced legislature, which North Carolina certainly has. It also has a state Constitution that guarantees “all elections shall be free.” Which should be something that goes without saying, but other states don’t explicitly say that.
So in other states the opportunity trickling down from the Supreme Court ruling could be twisted into a limitation: without the Supreme Court setting any kind of precedent other than letting states figure it out state-by-state,(other than for violation of the Voting Rights Act, which would have to prove racially-based gerrymandering), there’s no obvious “domino effect” here. The fact that North Carolina did it is refreshing in this era of incredible cynicism and self-interest. But it has zero influence and sets zero precedent on how other states will proceed, and other state court judges will rule.
Unless other judges also choose to hew to the thoughts in the paragraph we quoted above, and lift themselves above partisan politics. What are the chances of that? Maybe a little better now, especially since the North Carolina decision exposes so many “dirty tricks” in such great detail, that they’re becoming increasingly hard to deny. Which doesn’t mean they won’t be denied anyway.
So will we see the same kind of movement out of some other heavily gerrymandered states like Alabama, like Wisconsin, like just down the road in South Carolina? Where courts are stacked more in Republicans’ favor? We’re not so sure…