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North Carolina Congressional map struck down as a partisan gerrymander

January 9th, 2018, 5:33pm by Sam Wang


News flash – in League of Women Voters of North Carolina v. Rucho (and Common Cause v. Rucho), a federal court has found the Congressional district map to be an unconstitutional partisan gerrymander. Decision here.

Recall that this is a map that was first found to be a racial gerrymander, and then was re-litigated as a partisan gerrymander. This is an important development – it’s the first time that any federal court has ever struck down a statewide districting plan on partisan grounds.

See the comment thread for my thoughts on what’s ahead. Also, as usual, many of my readers have excellent insights.

Tags: Redistricting

14 Comments so far ↓

  • Pechmerle

    The opinion is 205 pp., so lots to digest here. But at a quick glance, I’m immensely heartened that this panel started from first principles:

    Const. Art. I Sec. 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ….”

    They read this as reflecting the principle that we now commonly express as, ‘The voters should choose their representatives, not the representatives choose their voters.’ They quote in support of that reading the Supreme Court’s opinion in the Arizona commission case.

    They go on to also find a violation of equal protection under the Fourteenth Amendment and of freedom of association under the First Amendment. (One of the three judges disagrees with the First Amendment argument.)

    • Sam Wang

      I thought an Article 1 challenge was a bit manic…but they went there. Really new law there, I think.

    • Pechmerle

      Not so new – there is a favorable reference to the Art. I Sec. 2 argument in the Arizona commission case from the Supreme Court (2015):
      “it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,” Art. I, §2.

    • Sam Wang

      That’s not how I read what they were sparring over. I think that in Arizona, a key question was whether a commission could have the power of a “legislature.” In the 18th century, that word referred to any entity with lawmaking power. Original intent, baby!

      As far as I am aware, SCOTUS has never held fair districting to be a requirement emanating from Article I. There is a Pennsylvania case that wanted to pursue this route. The North Carolina court evidently thinks it is possible, but as far as I am aware, SCOTUS has only discussed the Fourteenth Amendment (one person, one vote) and Justice Kennedy’s favorite, the First Amendment (viewpoint discrimination).

    • Pechmerle

      Of course you’re right about the specific issue in the Arizona commission case. But as the passage I quote shows, Ginsburg (author of the majority opinion) formulates that issue as a subset of the more fundamental principle that legislative power derives from — and therefore may be exercised directly by — the People themselves.
      The district court in the North Carolina case has picked up on this, and was — I believe — therefore emboldened to make a holding directly on the Art. I, Sec. 2 basis. But note also, they have — as judges who know their decision is certain to be appealed typically do — asserted all three of the available grounds for their result: Art. I; Fourteenth Amendment; and First Amendment. They’ve attempted to cover all possible bases.

    • Sam Wang

      In a world where close cases are dominated by R.B.G.’s jurisprudence, much more can be done to protect and expand voting rights. We’re not there now, so I react poorly to the Article I claims. I feel bound by the possible. But yes, imagine if Article I, section 2 were to grow and flourish.

      On my podcast I was discussing the first Gilded Age with historian Richard White. He pointed out that attempted progressive reforms were held back for many years by judges who stuck around for decades. That might repeat itself this time around with guys like Gorsuch.

    • Pechmerle

      The North Carolina district court spends quite a lot of space in its opinion arguing the Art. I, Sec. 2, ground on the basis of the Supreme Court opinion in Wesberry v. Sanders (1964). That case involved Georgia congressional districts that were grossly disproportional in population (2x & 3x to 1). The lower court — this was early in the one-man one-vote era of Baker v. Carr — had dismissed the case as involving a nonjusticiable political question. The Supreme Court said that was clearly wrong, and that Art. I, Sec. 2, implies not merely a right to representation in the House but a fair representation of population per district without improper vote dilution.
      In Vieth, the plurality opinion went out of its way to disavow Wesberry, pointing out that one-man one-vote has nothing to do with equal (or proportional) representation of members of a political party, or farmers, or whatever identity grouping you point to. Notably, however, Kennedy did not mention Wesberry at all in his controlling concurring opinion in Vieth.
      Thus, technically, Wesberry’s application to gerrymandering is not barred by precedent. It does seem bold of the North Carolina district court to rely so heavily on it, though. They, like so many, may have have tailored their argument in a manner to see if it would be persuasive to Kennedy.
      The district court may have thought, the gerrymandering in North Carolina is so out of line that this is one on which we can get Kennedy to buy into the Art. I, Sec. 2, basis for fair representation against partisan gerrymandering. If that doesn’t work, they still have their alternative grounds of the Fourteenth Amendment and the First Amendment.

    • Sam Wang

      One thing I will say, the lower court’s ruling seems so thorough. I feel like those judges left it all on the field. I will be reading that opinion a few more times.

  • Pechmerle

    The Brennan Center has a rundown on all major pending redistricting cases here:

    https://www.brennancenter.org/blog/state-redistricting-litigation

  • Josh

    Isn’t the big question here whether or not SCOTUS will stay the ruling? If they don’t, what does it say about their upcoming decision on Gill v. Whitford?

    • Sam Wang

      Bet you a nickel they won’t stay. They didn’t take Gill v. Whitford, and then Benisek v. Lamone on top of that, just to say “meh.” Either they want to have one Republican gerrymander and one Democratic gerrymander to make a matched set, or they got finicky about some detail of Whitford. I think it’s the former.

      That said, I agree that stay/no stay would give us a medium-sized clue about Whitford. But note that they stayed Whitford itself…and oral argument sure didn’t look good for the state of Wisconsin.

    • Pechmerle

      Here, again, this decision is immediately appealable because the district court has issued an injunction. In fact, they’ve ordered Maryland to come with a new districting plan this month! So that the district lines for Nov. 2018 can be operational on the new basis. That puts tremendous pressure on the North Carolina legislature to get in front of the Supreme Court as soon as possible to avoid either having to whip up a new districting plan or, the alternative the district court ordered, having a court-appointed special master do it for them, which they would really hate.
      In those circs, I would not be surprised if the Supreme Court does stay the lower court ruling pending review at the Supreme Court. That would appear to be consistent with their approach to Whitford, where they are treating it very seriously but have not acted so promptly that it is certain that new districting would be accomplished in Wisconsin by Nov. 2018. I.e., they seem to be taking a longer view than Nov. 2018 on this fundamentally important question.

    • LondonYoung

      IMHO, if they stay it does not mean that much, but if they don’t stay it is way more than a medium-sized clue on Whitford. If they don’t stay we have our the decision: partisan gerrymanders can be identified and the courts can eliminate them.
      Whitford can clean up a few details when J. Kennedy gets around to it.

    • Sam Wang

      On second thought, I agree with LondonYoung. Now I have to calibrate when to start forming an opinion about that. The next 1-2 weeks, I guess.

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