Citizen Green: The Supreme Court’s democracy test

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Courtesy League of Women Voters of North Carolina

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 6th and 13th 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 9th 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.”

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