As the Gerrymanders worsen, options to topple them weaken
Voting rights advocates are in North Carolina state court in Raleigh this month, arguing in three lawsuits that Republican gerrymanders in the state legislature and the state’s 14 seats in the House representatives are so extreme that they violate the state constitution.
Just two years ago, some of the same lawyers argued that remarkably similar Republican gerrymanders from the same legislature, drawn ten years ago, violated the same clauses in the constitution. That lawsuit ended with a resounding verdict in their favor, but only after the gerrymandered cards had been used for nearly a decade.
Winning this kind of case, even belatedly, now seems much longer. Experts say that even as gerrymanders become more and more blatant, the legal avenues to cancel them are getting narrower and narrower.
“The good news is that litigation is likely to go a little faster than it has in the last decade,” said Richard L. Hasen, an electoral law expert at the University of California at Irvine and longtime critic, said last week. date of the gerrymanders. “The bad news is that it will progress faster because the plaintiffs will lose.”
More and more states – mostly Republican like Ohio and Texas, but now Democrats like Illinois – are drawing cards that effectively ensure the ruling party stays in power.
North Carolina emphasizes the importance of the stakes and the weakness of legal safeguards.
With a Democratic governor, two Republican senators and a shared record in the recent presidential elections – the state voted for Barack Obama in 2008 and Republicans narrowly since then – North Carolina voters are as divided as any other in the country. But legislative and congressional maps approved this month by the Republican-controlled legislature unbalancedly favor Republicans.
According to PlanScore.org, a non-partisan website, if North Carolina’s vote on the new maps were split 50-50 between the two parties according to recent voting patterns, it would give Republicans a 64-56 advantage in the State House and a 32-18 margin in the State Senate.
The new congressional map is even more slanted, giving Democrats an advantage in just three of 14 seats in the State House, up from five they currently hold.
The racial impact of the cards is considerable. Government accountability watchdog, Common Cause, said a quarter of the 36 state legislative seats held by African Americans, all Democrats, would be likely to become Republicans. The district containing the seat a black MP, Representative GK Butterfield, has held since 1992 also lost much of his black constituency, and he chose to step down at the end of that term.
“The legislature has given us a card that is an extreme political gerrymander and an extreme racial gerrymander,” Mr Butterfield said last week. “It is unacceptable, and it is unconstitutional.”
Republicans in North Carolina say they did not use racial or political data to draw the maps. When asked if the state Senate card was a partisan gerrymander, the Republican co-chair of the Senate Redistribution Committee, Senator Paul Newton, replied, “The courts will decide this.” But, he added, “No it’s not. It is fair and should be a fair and legal card.
Democrats and voting rights advocates strongly disagree.
Under the rules of the Voting Rights Act in effect before the Supreme Court struck down the law in 2013, “the Department of Justice would not have approved these cards,” said Allison Riggs, co-executive director of the Southern Coalition for Social Justice, which represents plaintiffs in a single lawsuit.
But this is not the only restricted legal route in recent years.
In 2019, the Supreme Court ended a decades-long debate over the constitutionality of partisan gerrymandering, saying it was up to Congress, not the courts, to correct politically biased maps.
The court also made it harder to prove that political constituencies were designed to reduce the weight of minority voters, a violation of the remaining rules of the Voting Rights Act. A 2018 Supreme Court ruling in a Texas case said a state’s track record of racial discrimination in redistribution – a long-standing factor in such cases – could not rule out the hypothesis that lawmakers were acting in good faith, even when they drew clearly locked districts. their own power.
The move, with the green light for partisan gerrymandering, prompts lawmakers to try to dodge prosecution with a new argument: Cards that dilute minority votes are not racist. These are only efforts to neutralize political rivals.
Beyond that, court challenges face a much less sympathetic federal bench remade by the 226 right-wing justices and three senior Supreme Court justices under the Trump administration. Mr. Trump’s choices have upset the partisan balance of three of the 13 appellate courts and have occupied about one in four district court seats.
The onslaught of the gerrymanders would further reduce an already minuscule number of competitive seats in state legislatures and the House of Representatives. Even before the last maps, partisan advantages were so unequal that four out of ten seats in state legislatures were unchallenged. In the House of Representatives, gerrymanders could cut the number of competitive constituencies by a quarter – now perhaps 51 of the chamber’s 435 seats – said David Wasserman, the House’s chief expert to the Cook Political Report. .
“It used to be the House of the People, elected every two years to be the most responsive,” said Edward B. Foley, constitutional law scholar and director of electoral law at Ohio State University. “By eliminating competitive districts, you make it the least responsive. “
In North Carolina, gerrymanders and lawsuits between them are a constant. Lawsuits challenging Republican-drawn maps were filed in 2011, 2013, 2015, 2016, 2018, and 2019. Republicans reluctantly redrawn them by court order in 2016, 2017, and 2019.
Understand how the US redistribution works
What is redistribution? This is about redrawing the boundaries of the legislative districts of Congress and the states. It occurs every 10 years, after the census, to reflect the evolution of the population.
This year is different in one key respect: All three lawsuits were filed in state court, the only courts remaining to challenge partisan gerrymanders – and the courts that gave plaintiffs their rare victory in 2019.
In one, the NAACP and Common Cause claim that new State House and State Senate cards violate state rules to comply with voting rights law. Another, by the State League of Conservation Voters, an environmental advocacy group, argues that legislative and congressional cards are racial and partisan gerrymanders.
In a third, 13 North Carolina Democrats, funded by a Democratic Party affiliate, called the new House of Representatives card a partisan gerrymander. Under state law, two of the cases will go to panels of three judges and then, if appealed, to the state Supreme Court.
Given the long chances of federal prosecutions, moving to state courts could become a trend. “There are a surprising number of opportunities for these constitutional challenges facing the state,” said Marina K. Jenkins, director of litigation and policy at the National Democratic Redistribution Committee, a branch of the Democratic Party.
The reason is that states offer a clear way to attack the unfair cards that are missing from federal prosecutions. Forty-nine state constitutions enshrine the right to vote (Arizona, the exception, has an implied guarantee of the right to vote), and 30 require that elections be free or “free and equal.” The Federal Constitution does not contain any of these clauses.
A three-judge panel from North Carolina in 2019 and the Pennsylvania Supreme Court in 2018 both cited guarantees of free and equal elections in rulings overturning partisan gerrymanders. This could guide other states in interpreting similar clauses, said Joshua A. Douglas, an expert on state election laws at the University of Kentucky Law School.
As a result, some legal challenges to the gerrymandered cards might boil down to the political complexion of state courts, which the non-partisan website Ballotpedia finds to tilt Republican in 27 states and Democrat in 15. A few high courts, notably the Supreme Court of Canada. Texas, have cemeteries reputations for voting rights lawsuits.
This is not the case for North Carolina. But a 2018 Republican legislature decision to elect Supreme Court justices by party affiliation, suppressing non-partisan elections, has put politics at the heart of many cases. This could have a significant impact on gerrymandering costumes, starting with the League of Conservation Voters filing.
This lawsuit, like all redistribution lawsuits, will be heard by a panel of three judges appointed by the Chief Justice of the Supreme Court. And that Chief Justice Paul Newby is a Republican who in November defeated the incumbent Democratic president by 401 votes out of nearly 5.4 million votes. On Friday, he named two Republicans and a Democrat to the panel.
This may well augur a reversal of the Panel’s earlier rejection of partisan card-drawing.
Mr Butterfield said the House trial was more at stake than the partisan balance in the state.
“What they do in my state, they do in Texas, Georgia and Ohio,” he said. “It’s seismic. It’s monumental. It is a gerrymandering epidemic that will not only harm the Democratic Party. It will damage our democracy.