In a stinging defeat for voting rights advocates, the U.S. Supreme Court’s conservative-leaning justices ruled Thursday that federal courts are incapable of solving partisan gerrymandering challenges.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” wrote Chief Justice John Roberts in the 5-4 opinion. “But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
The ruling drives a nail into the coffin of any chance for federal protections on an issue that has long plagued North Carolina and other states in which legislatures use political data in the redistricting process to entrench a party’s power. Both parties have used the tactic, but Republicans have had an edge over the past decade with the advent of modern technology.
Attorneys argued the sibling cases at the high court in March, Rucho v. Common Cause and Rucho v. League of Women Voters. The “nonjusticiable” ruling also applies to the Democratic partisan gerrymandering case from Maryland, Benisek v. Lamone.
Roberts wrote that the Court majority’s conclusion does not condone excessive partisan gerrymandering – he and his similar-minded colleagues conceded the North Carolina and Maryland maps before them were “highly partisan by any measure” – but the chief justice said he would rather rely on states and Congress to remedy the issue.
“The States, for example, are actively addressing the issue on a number of fronts,” Roberts wrote, citing a 2015 Florida Supreme Court decision striking down the state’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution.
He also wrote about states that have passed constitutional amendments to establish multi-member redistricting commissions, and highlighted a bill introduced in Congress this year that would do the same, H.R. 1.
“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” the 34-page opinion states.
There is a North Carolina partisan gerrymandering case currently pending in the state courts. Plaintiffs in Common Cause v. Lewis and voting rights advocates clung to the hope Thursday that the state case might have an impact on the 2020 redistricting process.
But not everyone interpreted the high court’s ruling the same way. Rep. David Lewis (R-Harnett), the state House’s principle point person on redistricting, called on Common Cause to drop its state case. He said the Supreme Court ruling sets a precedent that “it is not the judicial branch’s responsibility to determine winners and losers.”
“This is a complete vindication of our state and the fair and open process that we ran,” he said. “Framers gave this responsibility – they invested this responsibility to state legislatures.”
He encouraged conversation about redistricting reform at a press conference Thursday, but refused to say if lawmakers would take up any of the six pending bills addressing it this session. He was then asked why he would invite dialogue on the subject if there wouldn’t be any traction.
“I think it’s important to understand, what’s the old saying, you can’t really negotiate with a gun to your head? And I think with the constant lawsuits and constant pressure and literally every syllable – especially for someone who talks like me – is under scrutiny,” he said. “I think it’s very hard to have this conversation, but I have said many times that I am open to engaging in dialogue of what the best way to proceed is for 2021.”
Bob Phillips, executive director for Common Cause North Carolina, was at the press conference Thursday. Phillips said Lewis’ call for them to drop the state case “is not happening.” He also indicated that the hyperbole about difficult conversations was disingenuous.
“I’ve been at this for almost 20 years and we did not seek litigation until just a few years ago, so we have been good faith partners here for many, many years wanting to have that conversation,” he said. “[Lewis] and the leadership pushed us to where we are today with that.
“We can walk and chew gum at the same time, and we can still pursue litigation, which we will, but we can also have that conversation here in this building for meaningful redistricting reform. If they’re serious, I’m serious, let’s have at it.”
Kathay Feng, Common Cause’s National Redistricting Director, was even more direct. She said Lewis was wrong on the law and wrong about the facts of the case, and that he called for them to drop the case because he was afraid the truth that will come from the “Hofeller files.”
Thomas Hofeller was a renowned GOP mapmaker and his daughter turned his digital files over to Common Cause after his death as part of the state partisan gerrymandering case.
“Common Cause v. Lewis is important to bring in order to shine a light on the kind of manipulation that [Lewis] and other legislators have been involved in in trying to rig redistricting, and ultimately the outcome of elections,” Feng said.
The Hofeller files Feng cited had no bearing on the cases at the U.S. Supreme Court, but they are expected, she said, to provide “smoking gun” evidence at the state trial, set for July 15.
The U.S. Supreme Court has declined to weigh in on partisan gerrymandering at several points in the past 45 years. Roberts wrote in Thursday’s opinion that justices struggled with finding a test to measure how much politics was too much in the redistricting process.
Allison Riggs, senior voting rights attorney for the Southern Coalition of Social Justice, who represents plaintiffs in the League of Women Voters case, presented justices with a three-prong test that she said would identify maps that are extreme outliers and thereby unconstitutional.
The test involves identifying partisan intent — which would have to be district-specific — showing a severe and durable effect from that intent, and determining if there is any justification for it, such as the political geography of a state.
Roberts rejected the third prong outright and said of the rest, “asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise.”
“The initial difficulty in settling on a ‘clear, manageable and politically neutral’ test for fairness is that it is not even clear what fairness looks like in this context,” Roberts wrote. “There is a large measure of ‘unfairness’ in any winner-take-all system.
“Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”
All four liberal-leaning justices dissented in the opinion, which Justice Elena Kagan wrote. She emphatically disagreed that the court could not find a reasonable solution to an anti-democratic problem that they acknowledge is violating voters’ constitutional rights.
“So the only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights – in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends – the majority declines to provide any remedy.
“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.”
She added in the 33-page dissent that partisan gerrymandering imperils the nation’s system of government, and that part of the court’s role in that system is to defend its foundations.
“None is more important than free and fair elections,” Kagan added.
Thursday’s outcome has been described by voting rights advocates and attorneys arguing against partisan gerrymandering as the worst possible outcome for democracy.
Riggs expressed disappointment, but she encouraged voters not to be disheartened, and to remain engaged in the democratic process.
“That’s what the folks in the General Assembly want, and by giving them exactly what they want, it only cements their wins,” she said. “Don’t lose heart; fight harder, agitate harder, yell more loudly.…We know how to pick ourselves up, dust ourselves off and keep fighting, and that’s what we’ll do.”
Janet Hoy, co-president of the League of Women Voters of North Carolina, a plaintiff in one of the cases, said the high court’s decision was devastating for voters who have lived with unconstitutional districts in the past four federal elections.
“While we were hopeful that the Court would set a fair standard to address extreme gerrymandering cases like ours, we will continue to work on getting fair maps for North Carolinians through other means.”
Other North Carolina voting rights organizations expressed similar sentiments.
“The nation’s highest court may be taking its time determining how much partisanship is too much, but North Carolina voters aren’t waiting,” said Tomas Lopez, executive director of Democracy NC. “Our state’s movement against partisan gerrymandering is alive and well, anchored by future court challenges and legislative solutions, including our current push for Senate Bill 673’s Gold Standard Citizens Redistricting Commission.”
Equality NC’s executive director, Kendra R. Johnson, called partisan gerrymandering a “deplorable practice” that has enabled North Carolina’s Republicans to maintain power and control in unconstitutional ways.
“The decision to not hold these lawmakers accountable continues to underscore the Trump administration’s disregard for the most vulnerable Americans, and their interest in self-preservation above ethical and equitable democratic systems,” she said. “Equality NC stands with families and individuals across North Carolina who continue to be disenfranchised under [the state’s] unjust voting maps.”
Phillips was confident that the state partisan gerrymandering case would force change for the better. He promised to continue to try to work with lawmakers for redistricting reform, but also noted that he was confident justice would prevail in the state courts regardless.
“In order to guard against future gerrymandering, our state needs to enact lasting reform that takes redistricting power out of the hands of politicians and gives it to an impartial body that will draw our voting maps free from partisan politics, with robust public input and full transparency,” he said. “The message from the people of North Carolina is clear – the legislature must act to end gerrymandering now.”