The U.S. Supreme Court has refused to stop partisan gerrymandering that it acknowledged is "incompatible with democratic principles" — but that doesn't mean the fight against it is over.
In a 5-4 decision handed down on June 27, the Court ruled that manipulating election districts for partisan gain is a "political question" that federal courts cannot reach. In doing so, the conservative majority upheld a map of North Carolina's 13 congressional districts that — according to the legislators themselves — was designed to elect 10 Republicans. In dissent, Justice Elena Kagan said the Court abdicated its responsibilities and warned that gerrymandering can make Election Day "meaningless."
While the majority refused to act, the opinion by Chief Justice John Roberts notes that "state constitutions can provide standards and guidance for state courts to apply." And a lawsuit pending in a North Carolina court could lead to fair maps for elections to the state legislature, which in turn will be drawing new congressional maps after next year's census.
The lawsuit filed by Common Cause NC and dozens of voters claims the current map of state legislative districts violates the state constitution, including the rights to free elections, equal protection, free speech, and freedom of assembly.
Their complaint calls gerrymandering "an existential threat to democracy." It also says Republican legislators "have egregiously rigged the state legislative district lines" to maintain control of the legislature, "regardless of how the people of North Carolina vote." In 2012, 2014, and 2016, Republicans won supermajorities in the legislature despite earning only a narrow majority of statewide votes.
Like Chief Justice Roberts, the legislators defending the maps characterized these arguments as "a purported right to representation by representatives who share their own policy and political views."
Common Cause and other good government groups are supporting bills in the North Carolina legislature, some with bipartisan support, that would set up an independent commission to draw election districts.
The lawsuit from Common Cause will go to trial on July 15; no matter the outcome, it is sure to be appealed. The North Carolina Supreme Court, which has the final say on interpreting the state constitution, has a 6-1 Democratic majority.
Theft, lies, and ethical violations?
The parties in the state gerrymandering case will be in court the first week of July to argue about whether evidence from the hard drives of Thomas Hofeller, a deceased redistricting expert, should be admitted. Common Cause obtained the drives, which contain thousands of files, from Hofeller's estranged daughter.
The group said that "the Hofeller files reveal false statements and material omissions made by Legislative Defendants to the federal district court" hearing a separate racial gerrymandering case in 2017. The federal court ruled that legislators had racially gerrymandered the districts, but it declined to order a special election.
When the federal judge asked whether a 2017 election was possible, legislators claimed they hadn't yet started drawing districts. But the Hofeller files reveal that the maps "were already substantially complete," according to Common Cause. The defendants implied that they were unaware of his work. Legislators also told the public and the federal court that the maps didn't take race into account, but Common Cause notes that "Hofeller had data on the racial composition of the proposed districts in every one of his draft maps."
The lawyers representing Republican legislators responded to these documents by demanding that Common Cause return the files to the Hofeller family and destroy any copies. The lawyers also tried to unilaterally designate all of the files as "highly confidential" because a small fraction of them contain irrelevant personal information. Common Cause described this response as "a transparent effort to conceal evidence of wrongdoing" by the legislators and others.
In their latest court filing, the defendants accused Common Cause's lawyers of defamation and violations of ethics rules. They also dredged up dirt on Hofeller's daughter, who was the victim of horrific domestic violence. The brief suggests that Stephanie Hofeller stole the documents from her mother, which "may amount to larceny."
The legislators want the court to explore sanctions against the plaintiffs' lawyers. And they want the judge to keep the Hofeller files out of the lawsuit, even though they didn't object to Common Cause's subpoena seeking the data.
Stopping political gerrymandering
Every state constitution protects the right to vote, and in broader language than the U.S. Constitution. In its June 27 ruling, the U.S. Supreme Court discussed recent decisions by state supreme courts in Florida and Pennsylvania that struck down partisan election maps.
State constitutions also include specific rules that guide the redistricting process. For example, Florida voters in 2010 approved two constitutional amendments, one barring racial gerrymandering and another that says election maps "may not be drawn to favor or disfavor an incumbent or political party."
In 2015, the Florida Supreme Court ruled that legislators violated the constitution's ban on partisan gerrymandering when they redrew congressional districts after the 2010 census. In the next year's election, Republicans won 51 percent of the vote but 63 percent of the seats. The court ordered lawmakers to redraw eight districts, and it said that the redistricting process should be transparent.
As President Trump continues stacking the federal courts, more voters will have to turn to state courts to protect their rights. When state supreme courts interpret state constitutions, their rulings cannot be overturned by the U.S. Supreme Court.
Because most judges in the U.S. are elected, Professor Joshua Douglas of the University of Kentucky says that voters should educate themselves about judicial elections: "By becoming more informed citizens, we can influence state courts to make smarter decisions in upholding the fundamental, constitutional right to vote."