A panel of U.S. federal judges ruled Wednesday (Jan. 11) that North Carolina’s congressional map was unconstitutional. It was the first time a federal court had struck down a political map because of what it described as “invidious partisan intent”—in other words, partisan gerrymandering.
We asked Miles Rapoport, Senior Practice Fellow in American Democracy at the Kennedy School’s Ash Center for Democratic Governance and Innovation, to help us understand the context of this important judicial decision and its consequences for a growing movement to reform redistricting. Rapoport has served as Connecticut’s Secretary of the State and as a state legislator. Before his appointment at the Ash Center, he was president of Common Cause, an independent grassroots organization actively involved in the legal battle around redistricting, and of Demos, a policy organization promoting a vibrant and inclusive democracy.
Q: There seems to be a lot happening, politically and legally, in the area of redistricting. Can you place the federal ruling in context?
The issue of gerrymandering—both for racial discrimination and for partisan domination—is presenting itself ever more forcefully in our political debate and in the courts. This is partly because we are only two years from the 2020 Census and three years from 2021, when state legislatures (most often) will draw the district lines for congressional and state legislative districts. It is also because the dramatic impact of the redistricting done after the 2010 census and the 2010 Tea Party wave is becoming clearer and more relevant in our polarized politics. And finally, it is because the cases brought to protest the gerrymandering from that period are finally arriving at their judicial climaxes.
There are currently two cases pending before the U.S. Supreme Court: Gill v. Whitford out of Wisconsin and Benisek v. Lamone out of Maryland. The court has already heard oral arguments in the Gill case, with Justice Anthony Kennedy, who has been the swing vote on these cases in the past, seeming to lean toward thinking the court should act. One important reason to think the court may act is because there are so many cases being heard and decided in different federal courts that the situation begs for clear Supreme Court guidance.
Q: What is the background to the litigation over redistricting in North Carolina?
This brings us to the Common Cause v. Rucho case in North Carolina. (Full disclosure: I was president of Common Cause when the case was begun.) North Carolina has really been ground zero for the battles over voting rights. In political terms, it is a firmly purple state, quite evenly divided between Democrats and Republicans, although with stark racial differences in voting patterns.
After the solid Republican victory in 2010, the legislature set out to remake North Carolina’s electoral landscape in ways that would guarantee permanent Republican control. The legislature acted to eliminate same-day voter registration, restrict early voting, and remake the state’s election commission, among other measures. But it also drew the district lines in remarkably partisan ways, so that the North Carolina congressional delegation—again, after a vote very closely divided in all recent elections—consists of 10 Republicans and three Democrats.
A number of lawsuits challenging both congressional and state legislative districts were filed alleging racial discrimination, since the legislature—carefully and with sophisticated computer-assisted technology—divided districts by specifically ‘packing and cracking’ African American communities for maximum partisan advantage. The legislature has been ordered multiple times to go back and redraw districts. In an argument dripping with irony, the legislature maintained that they did not racially discriminate, but rather drew the districts along partisan lines, which had never (up until now) been declared unconstitutional.
Q: What makes this ruling so important?
This is what makes the ruling in the Rucho case so significant. The plaintiffs in the case specifically claim that drawing districts to dramatically advantage one party over the other is unconstitutional. It violates the equal protection clause by weighing one voter’s voice more heavily than others’, purely based on where they live and how the districts are drawn. The federal panel, in a long and powerfully worded decision written by Judge James Wynn, ruled that the legislature violated the constitutional rights of voters by its actions—the first time a court has so definitively ruled that partisan gerrymandering, as distinct (though intertwined) from racial gerrymandering, is a violation of the Constitution.
In addition, the decision directs the North Carolina legislature to redraw the districts by January 24, so that the 2018 elections will be conducted with new and more fairly drawn districts in place. Moreover, the judges said that if they are not satisfied with the legislature’s new plan, the court will employ its own consultant and draw the districts itself.
Republican legislative leaders swiftly denounced the verdict as a partisan vendetta, even though the mostly-unanimous decision was reached by judges appointed by Presidents Obama, Bush, and Clinton. They vowed to appeal the case to the Supreme Court, and it seems very likely that the court will accept the case. It may be too late for the court to formally join the case to the Gill and Benisek cases, but the court’s ruling in those cases—assuming the justices make one—will be the guiding star for the future of the Common Cause v. Rucho case as well.
Q: What are the likely repercussions of this decision?
All this judicial activity is both an indicator and a driver of the momentum for reform. If the Supreme Court rules that partisan-domination gerrymandering is unconstitutional and sets out guidelines for what is permissible, this will undoubtedly create lots of activity in advance of 2021. Legislatures will be forced to think about their district-drawing options in very different ways to be sure they don’t cross the Supreme Court’s lines. But perhaps more importantly, these rulings may mean that states will change their redistricting laws in ways that create very different processes for forming new districts. In California and Arizona, district drawing is conducted by independent citizen commissions. The California Citizens Redistricting Commission was the recipient of last year’s Kennedy School Award for Innovations in Civic Engagement.
There will be a ballot initiative in Ohio and very likely in Michigan to create or expand non-partisan commissions. And one really important factor will be the outcome of the 2018 elections. If there is a Democratic wave, the composition of state legislatures, governors’ mansions, and the offices of secretaries of state could change dramatically, opening up possibilities for reform. And even if Republicans control state legislatures in 2018, they may be concerned enough about 2020 to decide that supporting bipartisan reform in 2019 is the wisest route forward.
In any event, this issue is arriving in a big way, and the North Carolina decision is emblematic of that fact.