Gerrymandering And The Supreme Court In The Era Of Trump
How some of our worst fears have already begun being realized with the appointment of Brett Kavanaugh
In yet another setback to American democracy, on June 27, 2019, the U.S. Supreme Court ruled that the issue of partisan gerrymandering is beyond the purview of the federal courts. In particular, my home state of North Carolina (as well as Maryland) will not be made to draw new congressional districts for the 2020 elections. According to the Supreme Court’s 5–4 decision published Thursday, Chief Justice John Roberts said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
The only conclusion of the Supreme Court on Thursday was that extreme partisan gerrymandering is a political question that’s none of their business, and furthermore, should be left up to Congress or state legislatures to decide… which punts the issue directly back to the people in charge of doing the gerrymandering in the first place — something that was all too easily and shamelessly admitted by Rep. David Lewis, an N.C. Republican who was on the forefront of the redistricting efforts.
During the legislative session when the maps were drawn, Lewis openly announced intentions to give Republicans a large majority:
“I propose that we draw the maps to give a partisan advantage to ten Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats.”
(and this was after the federal court found congressional districts drawn in 2011 to include unconstitutional racial gerrymanders).
So what is gerrymandering, anyway?
Gerrymandering is a practice intended to establish a political advantage for a particular party by manipulating district boundaries.
North Carolina is a state where members of the General Assembly draw the maps for their own elections to the state House and Senate, as well as for federal elections to the U.S. House. Every ten years, after each census, the N.C. legislation draws these districts. The demographics of these districts are an extremely important factor in determining which political party gets to control the state government.
The News & Observer, my hometown paper, did extensive coverage on the practice of gerrymandering, including history on the term itself:
Every 10 years, after the Census, state political boundaries are redrawn to account for population changes. Gerrymandering is the practice of drawing those boundaries to benefit a party or group. While it may seem like a new problem, it isn’t. The term “gerrymander” dates back to an 1812 redistricting plan signed into law by Massachusetts Gov. Elbridge Gerry that was so irregular, the district looked like a salamander. Gerry + Salamander = Gerrymander.
This article also noted that over time, gerrymandering has only become a more sophisticated practice, especially with the advent of modern technology and data gathering techniques. And, despite its critics (including the current U.S. Supreme Court) largely seeing the process as being undemocratic, gerrymandering is actually considered legal — that is, unless it’s considered racial gerrymandering, which intentionally dilutes the influence of voters of certain races, and is prohibited by the Voting Rights Act.
The plaintiffs who filed suit in N.C. believed that their state’s redistrcting efforts have been exactly that — racial gerrymandering. They alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. They argued that the map was intentionally drawn to dilute the overall impact of black voters in North Carolina.
When looking at the map, it’s pretty obvious, at least to most of the residents of N.C.: the map was drawn this way as a form of voter suppression — to try and keep certain people and communities from having their votes count as much as the others, and/or from having the issues that matter the most to them addressed in Congress.
The District Court agreed it was unconstitutional. They ruled in favor of the plaintiffs, asserting that Republican representatives drew lines for the state’s 13 seats in the U.S. House of Representatives by gerrymandering them in such a way as to artificially inflate the power of Republican voters, and diminish the power of Democratic voters. One of these federal judges, Jim Wynn, who also ruled in other N.C. redistricting cases wrote a statement explaining that African-American voters, who often support Democrats, were targeted with what he referred to as near “surgical precision.”
In May of 2017, the Supreme Court upheld the lower court’s ruling that N.C. districts 12 and 1 were illegal racial gerrymanders. State legislative districts drawn by Republicans in 2011 had already been struck down in federal court for unconstitutional racial gerrymandering. Republicans redrew them in 2017 to comply with the court order, but even still, a few of them had to be redrawn again by a court appointed mapmaker.
But, with this most recent 2019 ruling, the new trump-era Supreme Court overturned the previous lower court ruling. They refused to strike down N.C.’s Republican-drawn congressional map as an unconstitutional partisan gerrymander.
For the minority in the dissent, Justice Elena Kagan, in a powerful statement she read from the bench, called the extreme partisan gerrymandering of NC (and Maryland) “anti-democratic in the most profound sense.” She was joined in dissent with Justices Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. Kagan expressed “deep sadness” that the conservative majority chose not to intervene.
Below is an excerpt from that statement of dissent (which can be found in full here, on pages 40–72 of this pdf).
“For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.
In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.
These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country have coalesced around manageable judicial standards to resolve partisan gerrymandering claims…
But yes, the standards do allow — as well they should — judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms.
In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong…
If there is a single idea that made our nation (and that our nation commended to the world), it is this one: the people are sovereign. The ‘power,’ James Madison wrote, ‘is in the people over the Government, and not in the Government over the people.’
Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them.
Election day — next year, and two years later, and two years after that — is what links the people to their representatives, and gives the people their sovereign power. That day is the foundation of democratic governance.
And partisan gerrymandering can make it meaningless.
At its most extreme — as in North Carolina and Maryland — the practice amounts to “rigging elections.” By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer. Just ask the people of North Carolina and Maryland.
The ‘core principle of republican government,’ this Court has recognized, is that the voters should choose their representatives, not the other way around.
Partisan gerrymandering turns it the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, ‘in the Government over the people.’
…For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply… In North Carolina, however the political winds blow, there are 10 Republicans and 3 Democrats…
Of all times to abandon the court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
So, what is the Supreme Court saying here, and morever, what does this say about the Supreme Court’s Decision?
In short, what this means is the Supreme Court abdicated their responsibility, as Justice Kagan pretty much pointed out in scathing critique. What it means is that for the 2020 election, extreme partisan gerrymandering (and many argue racial gerrymandering) at the national level will remain “a-ok as is.” What the majority conservative Supreme Court did was to make crystal clear that it is perfectly fine for representatives to choose their voters, rather than voters choosing their representatives.
Which is not just unfortunate, but almost unbelievable. With the case here in my home state of North Carolina (as well as in Maryland), the U.S. Supreme Court had the tremendous opportunity to do something right in an otherwise dumpster fire of a trio of years. They had the chance to set a national, deferential standard going forward. They could’ve easily upheld previous state level rulings that these gerrymanders were unconstitutional.
Instead, Justices Brett Kavanaugh, Neil Gorsuch, Samuel Alito, Clarence Thomas, and Chief Justice Roberts chose to throw up their hands, basically saying, “eh, what can you do?” (Or perhaps something more like, “this work is beneath our dignity, and not worth our time.”) Their refusal to get involved sets a dangerous precedent which is lockstep with trump’s vibe, i.e., “well, Putin said he didn’t do it, and I don’t have any reason to believe that he would do it, so…”
As a matter of principal going forward, the fact that the U.S. Supreme Court is just leaving this blatantly obvious, extreme partisan political gerrymandering out in the open, not only allowed, but uncontrolled, is a violation of the whole “one person one vote” notion.
Furthermore, how will this new precedent affect voter confidence?
Gerrymandering already disenfranchises minority voters and undermines democratic elections. Now this ruling, combined with other issues voters are having to consider as we approach the 2020 election (like meddling from hostile foreign governments) might just make it difficult enough for people to not feel compelled to vote at all. Because what’s the point of going out of your way to figure out your correct voting place, take the time and show up, and try to make your voice heard, if at the end of the day, your voice doesn’t even count?
And, if the only way to fix this issue is by voting in local representatives who staunchly oppose gerrymandering, then it’s a perpetual catch-22. How are folks supposed to vote against politicians who favor gerrymandering if their vote has already been minimized by the effect of re-drawn, extreme partisan gerrymandering?
What does this say about the Supreme Court’s decision? Unfortunately, it’s exactly the dangerous power dynamic shift that many of us feared happening with the appointment of trump’s (or, Mitch McConnell’s) uber conservative Supreme Court Justice picks, most especially, Brett Kavanaugh.
Anyone who watched the Kavanaugh hearings would be impractical to suggest — notwithstanding his scandalous controversies and brazenly repulsive behaviors that day — that he was anywhere near the calibre person deserving of a lifetime appointment on the Supreme Court. With the absence of Justice Kennedy, the impartial “swing vote,” and with Kavanaugh’s appointment, it seems the more conservative part of the Supreme Court only has become more emboldened to be partisan, and that is truly frightening.
In all of the history of this imperfect nation, we’ve always, always managed to make progress — perhaps at a snail’s pace sometimes — but forward progress, nonetheless. And that progress has been ever-reaching towards a more perfect union and a greater democracy. The Supreme Court has genuinely let us down — conservatives, liberals, Republicans, Democrats, Independents — in this case, party doesn’t matter. We all lose.
As we see in this case with both North Carolina (extreme Republican gerrymandering) and Maryland (extreme Democrat gerrymandering), it’s not about party. Much like the presidential election of 2016, it’s not about politics; it’s about where you stand on the scales of ethics, morals, and values — especially regarding your fellow Americans.
In other words, it’s about fairness and basic human decency.
It’s now going to be even harder than it was a year ago; it’s now up to every single citizen to stand up and speak up, to make their representatives know that they demand to have their voices count.
As Justice Kagan asked in the written dissent, “Is this how American democracy is supposed to work?”
No, it’s not.
Martie sir-ROY (she/her) writes a variety of social commentary. She’s a top writer in Culture and LGBTQ for Medium, editor of Gender From the Trenches, and has been a featured contributor for HuffPost, Scary Mommy, NPR affiliates, and SiriusXM Insight, among others. Martie is the founder of S.E.A.R.CH., a program of her local LGBT Center that serves trans youth and their parents. Connect with Martie on Twitter, Facebook, or follow her website & blog.