Citizen Green: The Supreme Court’s democracy test

In 1946, three voters in Illinois
took a complaint to the Supreme Court: that the state had failed to redraw its
congressional district lines since 1901, resulting in rural districts that
lorded political power over their overpopulated urban counterparts. Writing for
the majority, Justice Felix Frankfurter averred in Colegrove v. Green that “courts ought not to enter this political
thicket.”

Sixteen years later, in 1962, the
high court overturned Colegrove with
a finding that established the court’s authority to referee redistricting and
established the “one person, one vote” standard for apportionment.

Ever since, the court has been
steadily inching towards intervention in partisan gerrymandering.

In 2004, the court ruled 5-4 against
Democratic voters from Pennsylvania claiming their rights had been trampled as
a result of partisan gerrymandering by the Republican legislature. But Justice
Anthony Kennedy, who cast the deciding vote in Vieth v. Jubelirer, only reluctantly joined the majority because he
couldn’t identify a suitable tool to measure partisan gerrymandering to
determine whether it was excessive.

Proponents of fair districting have
been searching for a workable standard ever since.

Last year, the Supreme Court came
tantalizingly close in considering Whitford
v. Gill, in which Democratic voters in Wisconsin claimed they were harmed
by redistricting maps drawn to advantage Republicans. The high court ruled that
the plaintiffs needed to prove individual harm specific to their own districts
and remanded the case back to the district court.

The high court will have another
crack at the question on March 26 when they hear arguments over North
Carolina’s partisan gerrymandering scheme, in Rucho v. Common Cause, in which the Republican legislative majority
in North Carolina is appealing a lower court ruling that deemed the 2016
congressional map to be an unconstitutional partisan gerrymander.

“To be sure, the General Assembly
was quite candid about its partisan objectives, but it had just been faulted by
a federal court for lacking a clear record of political, rather than racial
motivation,” lawyers for the Republican majority wrote in their brief last
month. “Those reassurances were correct, and the time has come for this court
to make clear that the Constitution does not provide courts with the tools or
the responsibility to say how much partisan motivation is too much.”

Rep. David Lewis, the Republican
lawmaker who led the redistricting effort for the state House, said at the
time: “I propose that we draw the maps to give a partisan advantage to 10
Republicans and three Democrats because I do not believe it’s possible to draw
a map with 11 Republicans and two Democrats.”

The voters challenging partisan
gerrymandering in North Carolina also recognize the potentially far-reaching
consequences of the high court’s ruling in this case.

“By the standards of the past, North
Carolina’s current congressional plan is exceptional,” lawyers for the League
of Women Voters of North Carolina wrote in a brief filed on Monday. “It is the
first map in American history to ratify the pursuit of maximal partisan
advantage and to have its architect boast, on the record, about his desire to
harm his political opponents. It is the single most pro-Republican
congressional map of the last half-century. And it has set this record even
though the state’s political geography mildly favors Democrats. If this court
holds that partisan-gerrymandering claims are nonjusticiable, however, the 2016
plan will be the wave of the future. In the 2020 cycle and beyond, both parties
will emulate — or exceed — its abuses, openly entrenching themselves
in power using the full array of modern mapmaking technologies.”

Quite simply, the League and other
plaintiffs are proposing the same tool as their Wisconsin counterparts — a
measure known as the “efficiency gap” — to determine whether partisan
gerrymandering has gone too far.

The Republicans entrenched their
legislative advantage in North Carolina by “cracking” Democrat voting blocs in
Greensboro and Fayetteville, and “packing” them in Charlotte and Raleigh. The
sizable Democrat vote in Greensboro is entirely wasted by being split between
the Republican-leaning 6^th and 13^th districts, whose
shared boundary runs right through the middle of the NC A&T University
campus. By contrast, a far smaller number of Republican votes are wasted in the
three districts where Democrat constituencies are packed.

The efficiency gap, then, is the
difference between wasted Democrat votes and wasted Republican votes. An expert
witness for the League will testify that North Carolina holds an efficiency gap
of 27 percent favoring Republicans, meaning that in a hypothetically tied
election, Republicans would win 77 percent of the state’s congressional seats.
Predictably, even in 2018 — a wave Democrat election — Republican candidates
prevailed in 10 out of 13 congressional races — with an asterisk on the 9^th
Congressional District, where the state Board of Elections ordered a new
election after finding coordinated election fraud.

It’s not just Republicans imposing
victor’s justice over Democrats. In states like Maryland the sword is in the
other hand. If the Supreme Court gives a green light to North Carolina’s
extreme gerrymandering, Democrats will join Republicans in the grift — to the
detriment of all voters.

“Both parties are poised to wield
unified control of many state governments after the 2020 election,” the
plaintiffs warn. “If given a judicial green light, both parties will exploit
their authority to gerrymander even more aggressively, using even more potent
techniques than they have to date. Like North Carolina’s mapmakers, they will
ruthlessly crack and pack the opposing party’s voters. They will also program
computer algorithms to maximize their partisan advantage and make adjustments
throughout the decade to any districts that seem to be slipping from their
grasp. Through such machinations, ‘those who govern,’ who ‘should be the last people to help decide who should govern,’ will try to extinguish
‘the political responsiveness at the heart of the democratic process.”