Opinion: Daily Journal

Questions justices could have asked about N.C. gerrymandering

U.S. Supreme Court justices peppered lawyers with plenty of questions during the latest arguments over North Carolina’s congressional election map. This observer would have liked to have heard even more queries.

The unasked questions could have added valuable context to the ongoing debate over partisan gerrymandering.

Justices jumped quickly into question mode during March 26 oral arguments in Rucho v. Common Cause. Former U.S. Solicitor General Paul Clement spoke for just 47 seconds before the first question interrupted his argument. Clement defended the map North Carolina used for congressional elections in 2016 and 2018.

Justices offered even less deference at the outset of the opposing argument. Emmet Bondurant, representing lead appellee Common Cause, delivered 32 seconds of his opening monologue before a question cut him off.

In contrast, Allison Riggs enjoyed more time to offer an opening statement. Arguing on behalf of the League of Women Voters, the other lead plaintiff challenging the N.C. election map, Riggs spoke for nearly 2 ½ minutes before facing her first query.

This observer would have liked to have heard at least one justice push back against Riggs’ first sentence.

She claimed her clients had sued the General Assembly because “its leadership essentially bragged to these voters and the public at large that, by enacting a 10-3 plan, it was punishing voters who supported Democratic candidates and it was going to create districts that would not allow voters in those districts any meaningful ability to use normal democratic processes to redress infringements on their individual constitutional rights.”

It would have been nice to hear a justice ask any of the following questions: What evidence suggests that legislative leaders were bragging? Weren’t legislators simply stating as fact that they had drafted a map designed to elect 10 Republicans and three Democrats to North Carolina’s congressional delegation? Didn’t they say that map’s political factors were designed to distinguish it from a previous map that courts had tossed out because of racial gerrymandering? Weren’t they simply asserting that political — not racial — factors had motivated their actions?

The questions could have extended beyond Riggs’ claim about “bragging.” How exactly does an election map punish voters? Do they lose their right to cast a ballot? Do they lose their right to urge friends and neighbors to cast ballots for their preferred candidates? Do they lose the right to work with their preferred political party to put forward the best possible candidate to win a majority of votes in the district?

Since the answer to each of these questions clarifying voter “punishment” is “no,” how has the election map blocked voters in any “meaningful” way from engaging in “normal democratic processes”?

If Riggs had responded that none of these activities would have made a difference, that the map itself guaranteed a 10-3 Republican advantage in the N.C. congressional delegation, a justice could have asked this follow-up: Did you not follow the 2018 election cycle?

Those who had paid attention to recent electoral news know that Democrats made concerted efforts to flip at least three Republican-held congressional seats. In the Second District, the GOP incumbent won with a margin of just 18,000 votes out of 330,000 total ballots cast. In the 13th District, the margin was slightly more than 17,000 out of about 285,000 total votes. And in the 9th District, just 905 votes separated the apparent Republican winner from his Democratic foe. (Democrats still have a chance to flip that seat this year because of absentee ballot irregularities that prompted criminal charges and a new special election.)

With an extra infusion of campaign cash here, an unexpected scandal there, or a series of damaging political gaffes on the campaign trail — in other words, the standard electoral process at work — Democrats could have cut the Republican advantage in North Carolina’s House delegation to 7-6. With a map designed to elect 10 Republicans.

Actual elections with real candidates — “normal democratic processes” — challenged Riggs’ assertion that N.C. Democrats had no “meaningful ability” to elect more than three members to the U.S. House.

Chief Justice John Roberts came close to making this point during the oral arguments. “What do you do with the fact that partisan identification is not the only basis on which people vote?” he asked. “Do you see electoral results change dramatically depending, for example, on the particular appeal of individual candidates, turning on who’s at the head of the ticket rather than down ticket? And how do you deal with that — those factors that depart from the arguments about the inevitability of electoral results based on partisan identification?”

Put another way: Regardless of the General Assembly’s plans, voters have the final say.

“It turns out that a lot of the predictions in this area … prove to be very, very wrong very often,” Roberts said, before citing a 2004 Pennsylvania redistricting case. “You have the famous example in the Vieth case where the argument was … the method under challenge would never allow the election of Republican judges. And 15 days after the opinion came down, all the judges were Republican.”

Roberts and his colleagues should decide in June whether North Carolina’s congressional map will withstand a constitutional challenge. This observer hopes Roberts’ comments — along with important questions never asked during oral arguments — will help guide the high court’s final ruling.

Mitch Kokai is senior political analyst for the John Locke Foundation.