Opinion: Daily Journal

If it’s politics, it’s fine

Ten words from a single U.S. Supreme Court justice just might have derailed an effort to end partisan gerrymandering through judicial fiat.

“If it’s politics, it’s fine; if it’s race, it’s not.”

Justice Elena Kagan, an Obama appointee, uttered that line during oral arguments Monday in McCrory v. Harris. That’s the case challenging North Carolina’s 1st and 12th congressional districts as unconstitutional examples of racial gerrymandering.

Regardless of the outcome of that case, Kagan’s words could come back into play in another challenge involving North Carolina’s congressional districts.

Before explaining how, let’s remind ourselves of the current state of redistricting litigation.

Based on 2010 census numbers, the Republican-controlled N.C. General Assembly drew new election maps in 2011 for the state House and Senate and for North Carolina’s 13-member delegation to the U.S. House of Representatives. Within months, President Obama’s Justice Department signed off on those maps through a process officially known as preclearance.

Those maps also survived an initial round of court challenges from interest groups aligned with the Democratic Party. That included a unanimous 171-page ruling in 2013 from a three-judge state panel, consisting of two Democratic Superior Court judges and one Republican colleague.

North Carolina conducted elections in both 2012 and 2014 based on the 2011 maps. But the legal fight continued. A second round of challenges against North Carolina’s legislative and congressional districts turned out better for Democrats this year.

On the legislative side, a three-judge federal panel ruled in August that racial gerrymandering affected 28 of the 170 election districts. While judges permitted 2016 legislative elections to proceed under the 2011 maps, the panel later ruled in November that lawmakers should redraw N.C. House and Senate maps and proceed with new elections in 2017.

As for congressional maps, a three-judge federal panel ruled against the state in February 2016 in McCrory v. Harris. That decision forced state lawmakers to go back to the drawing board and redraw the congressional election map. Voters faced new election districts for an unusual June congressional primary and for last month’s general election.

Meanwhile, the old congressional election districts remain alive as the McCrory v. Harris case sits in the hands of Kagan and her U.S. Supreme Court colleagues.

In the course of drawing the latest congressional maps, state lawmakers openly omitted any consideration of voters’ race. They focused instead on guaranteeing a partisan advantage for Republicans. One of the guidelines for new maps specifically said that lawmakers wanted to craft districts that would likely elect 10 Republicans and three Democrats.

The three-judge panel in McCrory v. Harris did not block the new districts, but those districts did spark a pair of new lawsuits.

Common Cause, the Democratic Party, and current and former Democratic legislators filed suit in August challenging the partisan nature of the latest congressional maps. In September, the League of Women Voters and a dozen Democratic voters followed suit (pun intended). The LWV lawsuit specifically relies on the “efficiency gap” statistic that recently prompted a federal panel to throw out legislative election maps in Wisconsin.

Each of these plaintiffs believes that “partisan” gerrymandering ought to join “racial” gerrymandering among the ranks of unconstitutional legislative actions.

Which brings us back to Kagan.

“If it’s politics, it’s fine; if it’s race, it’s not.”

She was not addressing an “efficiency gap” argument or a case specifically targeting partisan gerrymandering. But it’s hard to read Kagan’s words without reaching the conclusion that she distinguishes between election maps drawn to secure a political advantage (“fine”) and maps drawn to disadvantage a racial minority (“not”).

Kagan did not sit on the U.S. Supreme Court when this issue last reached justices in 2004. At that time, four justices led by Antonin Scalia held in a Pennsylvania case that partisan gerrymandering was a political issue that courts should not address. Four other justices disagreed and proposed potential tests for determining an unconstitutional partisan gerrymander.

Perennial swing vote Anthony Kennedy agreed that a court could determine whether an election map was overly partisan, but he rejected his colleagues’ potential tests as insufficient.

While gerrymandering foes have spent the past decade searching for a test that would satisfy Kennedy, they also might need to find a way now to rebut Kagan’s simple assessment.

As long as she sticks with the notion that “if it’s politics, it’s fine,” it will be hard for the high court to rule otherwise.

Mitch Kokai is an associate editor of Carolina Journal.