The clock on partisan gerrymandering keeps ticking.
The U.S. Supreme Court, in an unsigned order issued Monday, sent lawsuits challenging the legality of North Carolina’s congressional districts back to a three-judge panel for reconsideration. The justices ordered the lower court to look at the consolidated lawsuits of Rucho v. Common Cause and League of Women Voters v. Rucho in light of a Wisconsin decision, issued last week, saying plaintiffs have to prove they’re harmed as individuals when lawmakers draw districts to favor one party over another.
The ruling won’t affect existing congressional districts during November’s general election, an expert says.
The issue is whether Republicans’ deliberate drawing of congressional maps to maximize the number of GOP-friendly districts was unconstitutional. The trial court ruled it was.
But in the Wisconsin case, Gill v. Whitford, the justices said the 12 voters who claimed Republican partisan gerrymandering discriminated against Democrats, and was intended to dilute their voting power, didn’t have standing to sue. The Wisconsin voters couldn’t file a lawsuit affecting all state legislative districts because they didn’t live in all the districts.
“Although there will be much discussion, and many different interpretations of [Monday’s] Supreme Court order, all we can say for certain is that the Supreme Court wasn’t willing to uphold the lower court judgment as it stands,” said John Dinan a constitutional law professor at Wake Forest University.
Dinan noted the justices haven’t said whether courts have the authority to toss out legislative or congressional districts merely because they’re intended to give the party in power the most seats possible.
For now, we’re not sure if the Supreme Court would invalidate districts drawn with partisan intentions, he said.
“Clearly, there are four Supreme Court justices willing to do this, but we still do not know after last week’s Wisconsin decision if Justice [Anthony] Kennedy is willing to supply a fifth vote for this proposition,” Dinan said.
The Supreme Court in the Wisconsin case sidestepped that question by saying challengers first must show they are individually harmed by a redistricting plan, Dinan said. The challengers in the Wisconsin case did not meet that burden.
“Essentially, the Supreme Court in the Wisconsin case put off for another day the key legal question of whether partisan gerrymandering is prohibited,” Dinan said.
Election observers had projected for months North Carolina most likely would be the next place the Supreme Court would decide how much partisan redistricting is too much, or whether there should be any restrictions.
Rep. David Lewis, R-Harnett, said in February 2016 during court-ordered congressional redistricting that the General Assembly didn’t consider race in drawing new maps. Districts used in 2012 and 2014 elections had been ruled unconstitutional racial gerrymanders. Lewis said congressional districts were then redesigned with a 10-3 Republican advantage only because he couldn’t find a way to widen the margin to 11-2.
Common Cause lawyers filed a brief with the Supreme Court after the Wisconsin ruling claiming the North Carolina case demanded a decision. Common Cause said the plaintiffs lived in all of the state’s congressional districts, and the Democratic Party, which represents voters statewide, was a plaintiff.
Challengers in the North Carolina case must overcome two obstacles in light of the recent Supreme Court decisions, Dinan said.
“First, voters who oppose the North Carolina congressional district plan will have to show that they are individually harmed by the district map, and do so in a way that meets recent Supreme Court guidance,” Dinan said. Challengers “will have to eventually persuade the Supreme Court to declare partisan gerrymandering impermissible, and capable of being remedied by federal courts, in a way that the Supreme Court has not yet determined.”
Geoffrey Skelley, spokesman for the University of Virginia Center for Politics and associate editor of Sabato’s Crystal Ball, the center’s nonpartisan newsletter, said the redistricting case won’t affect North Carolina’s Nov. 6 election.
“The U.S. District Court for the Middle District of North Carolina ruled in January that North Carolina’s congressional map was unconstitutional, and ordered a new map in time for the November elections,” Skelley said. But the U.S. Supreme Court issued an order delaying the creation of a new map.
The Wisconsin case suggests a larger entity, such as a political party, might have standing to challenge statewide redistricting. But Skelley said the Supreme Court didn’t make that clear.
Attorneys for North Carolina’s Republican lawmakers filed a petition with the Supreme Court after the Wisconsin ruling stating: “The arguments and evidence that the court rejected in Gill mirror the arguments and evidence that the plaintiffs have presented in this case.” Even though the challengers claimed statewide standing, they failed to prove individual harm.
“The lower federal court could decide in favor of the plaintiffs again, and the defendants would surely appeal to the Supreme Court once again, so this case may very well be back in front of the high court next judicial term,” Skelley said.
“‘Hot potato’ is exactly how I would describe it,” Skelley said.
The next round of constitutionally mandated redistricting will take place for the 2022 election cycle, after results of the 2020 census are available.