You have to wonder: What would U.S. Chief Justice John Roberts Jr. tell that proud North Carolina gerrymanderer David Lewis if they ever came face to face, just the two of them?
OK, we can imagine the cynical answer. He’d tell his fellow conservative, most vocal defender of the Republican-led N.C. General Assembly’s tactics to marginalize Democratic voters, “Keep up the good work!”
But let’s give the chief more credit. In fact, one can also imagine him, in a voice as cold as ice, warning Lewis not to gloat over having just dodged a big-time legal bullet.
It was Roberts’ landmark opinion, joined by the Supreme Court’s four other Republican-appointed justices with the four Democratic appointees dissenting, that settled the long-debated question of what the federal courts would or could do to block partisan gerrymandering – the shaping or misshaping of election districts to lock in one party’s advantage over another. And that would be nothing, nada, zilch.
The case involved U.S. House districts in North Carolina and Maryland, the former configured by Republicans to put the screws to Democrats, and vice versa in the latter. Lewis, a state House member from Dunn, was his chamber’s redistricting point person and became a defendant in the lawsuit brought by Common Cause.
His explanation of why the 2016 congressional maps were drawn the way they were was so brazen that it shadowed the case’s entire path through the courts: The districts were designed to elect 10 Republicans and 3 Democrats because, Lewis said, he did “not believe it possible to draw a map with 11 Republicans and 2 Democrats.”
Lewis later said he’d been joking – har, har – but many saw that as a smoking gun proving Republicans were intent on disenfranchising Democratic voters so they could bolster GOP ranks in the U.S. House.
And why not see it that way – since Republican congressional candidates in the aggregate managed to outpoll their Democratic rivals by only slim margin while capturing, as Lewis anticipated, 10 seats in 2016. Last year, despite Democratic gains in state legislative races, the congressional outcome was the same, except for the fact that the apparent Republican winner in one district stepped aside amidst allegations of absentee ballot fraud having benefited his campaign. A special election is in the works.
Hard to argue
Roberts’ opinion suggests he more or less agrees with criticism of the districts that were cooked up by Lewis, his former Senate counterpart Robert Rucho and the Republican Party’s national redistricting guru, the late Thomas Hofeller of Raleigh.
As the chief justice acknowledged, “Excessive partisanship in districting leads to results that reasonably seem unjust.” The problem, he wrote – and we can almost see him shrugging his shoulders in an exaggerated display of helplessness — is that nothing in the U.S. Constitution prohibits partisan gerrymandering, no matter how much the victims of that gerrymandering complain about their rights being violated.
With no constitutional standards in play, Roberts went on to assert, the federal courts have no authority to decide when the inherently political process of redistricting has veered out of control into partisan gerrymandering so extreme it shouldn’t be tolerated.
To invoke such authority, he wrote for the court’s majority, would amount to “an unprecedented expansion of judicial power.” And he conjured up a quagmire of litigation through which the federal judiciary would be forced to slog, while never having the basis for firm conclusions as to whether a given set of district maps did or didn’t violate some voters’ constitutional rights because of the maps’ partisan tilt.
Basically, then, Roberts & Co. conceded that the Republican map-drawers found a way to finesse the Constitution, which for all its guarantees of equality before the law never comes right out and says that voters must be treated equally irrespective of party.
But on the heels of that victory – sort of like when the trooper decides he can’t write you a well-deserved speeding ticket because his radar gun was acting up – Lewis promptly bragged about it.
“This is a complete vindication of our state and of the fair and open process that we ran,” he was quoted as saying. Roberts, in our imaginary colloquy, instead might proceed to lecture the lawmaker on how lucky he and his pals really were and on how far they had strayed from the country’s democratic principles. Sure, they were by no means the first to abuse the redistricting process, but it was a grievous example, with today’s sophisticated mapping software put in service of ruthless partisanship.
Roberts concluded his opinion with some words of reassurance and helpful suggestions — and no, that’s not meant to be cynical, even though folks who brought the failed lawsuit fault the court majority for not seizing the best chance yet to be truly helpful by telling the gerrymanderers enough is enough. (The four high court dissenters, led by Justice Elena Kagan, emphatically agreed.)
“Our conclusion does not condone excessive partisan gerrymandering,” Roberts wrote. “Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts.”
He mentioned moves to have districts drawn by independent commissions or demographic experts rather than legislators, coupled with rules designed to prevent the party affiliation of voters from being used in deciding on district boundaries. And he noted that the lack of anti-gerrymandering language in the U.S. Constitution doesn’t mean state constitutions can’t be interpreted to mandate district boundaries that treat voters fairly.
From the standpoint of North Carolinians seeking to bring partisanship in district-drawing under control, the situation here has represented a tough nut to crack. Congressional and legislative districts all are drawn by the General Assembly ostensibly to track population shifts disclosed by the national census that’s conducted in years ending with zero. So a party that controls the House and Senate in the year following a census can draw maps to last throughout the ensuing decade, assuming the maps withstand any legal challenges.
The governor is not permitted to veto redistricting bills, and legislators in the driver’s seat have every incentive to skew district boundaries to maximize their party’s and their own personal power. That’s why the 2020 legislative elections loom especially large.
Further, a change to the state constitution – such as a move toward an independent redistricting process – must be approved by a supermajority of legislators before being submitted to the state’s voters in a referendum. Unlike in some other states, citizens here don’t have the option of trying to amend the constitution without legislative buy-in – generally a wise check against rash changes but a significant hurdle when legislators might be called upon to act against their own political interests. So the effort being led by former UNC system President Tom Ross to secure an anti-gerrymandering constitutional amendment – even though there’s considerable legislative support – faces long odds.
The state’s call
The open question is whether North Carolina’s own constitution can be read to bring partisan gerrymandering to a halt. As it happens, that question is likely to be answered one way or the other as a lawsuit targeting state legislative districts works its way through the state courts.
A trial in the case known as Common Cause vs. Lewis (there’s our friend from Dunn again) is set to begin on July 15 in Wake County Superior Court. The plaintiffs, in their filings, don’t mince words – they call partisan gerrymandering “an existential threat to our democracy.” Indeed, it’s commonly observed that this form of gerrymandering exacerbates the rancorous divides between the major parties, since primary elections that attract candidates from the parties’ extremes tend to take on more significance than general elections where the outcome is virtually preordained. A lawmaker who might be inclined to work across the aisle has to think twice about whether a hard-right or hard-left firebrand might mount a primary challenge.
The N.C. Council of Churches supports efforts to make the state’s redistricting process consistently fair to voters no matter their party or their race. Fortunately, racial gerrymandering — when it’s proven to have occurred, as it has in North Carolina – runs afoul of the federal Constitution and can be remedied on that basis. But gerrymandering to punish the members of a political party also eats away at our democratic foundations, giving us leaders who act as though they can afford to shrug off the concerns of voters who can’t lay a glove on them.
When those voters are people whose lives are made harder by legislators pandering to the rich and well-connected, that’s a serious issue for those of us who want to see the interests of the vulnerable protected.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.