Publisher's note: The author of this post is Andy Taylor, who is a contributor for the Carolina Journal, John Hood Publisher.
Courts have been dealing with gerrymandering - the redrawing of legislative district lines to further a particular political interest - for more than 50 years. Since a series of landmark cases in the 1990s, including some from North Carolina, federal judges have established and refined the principle that legislative redistricting cannot be guided by racial considerations. Determinations that North Carolina lawmakers were influenced by race forced them to redraw congressional lines for 2016 and the state legislative boundaries for this year's contests.
In January, a federal court did something new by declaring the state's congressional map an unconstitutional partisan gerrymander. The U.S. Supreme Court
will ultimately decide what should happen later this year, possibly folding the case into others from Maryland and Wisconsin. Using the Constitution's 14th Amendment due process and equal protection clauses, it has established race as a "suspect" or "protected" class to which any perceived discrimination should receive "strict scrutiny" and only be permitted under extreme circumstances. A person's partisan affiliation has no such constitutional standing.
The argument against the partisan gerrymander, at least within current legal doctrine, rests largely on two other assertions. The first is motivation. In the current North Carolina case, this is quite persuasive. Rep. David Lewis, R-Harnett, has made it clear he and his Republican colleagues who oversaw the process focused quite deliberately on party. He did this to persuade judges race had absolutely no influence on their decisions. The claim was clumsy. But how were Lewis's words evidence of illegality?
The second assertion centers on the maps themselves, essentially the election outcomes they produced. But if partisan gerrymanders are recognized by their appearance, then where do you draw the line? How do you know one when you see one? Existing law - whether it be the Constitution, statute, legal precedent, or court decisions - provides no assistance.
In the North Carolina case - two, actually - former state Sen. Bob Rucho
was named the defendant in both - Judge James Wynn resorted to statistics and the work of mathematicians, principally Duke's Jonathan Mattingly. The judge came to his decision because less than 1 percent of the roughly 25,000 potential maps drawn up by Mattingly would have matched the actual 2016 outcome - that is returning 10 Republicans and three Democrats. This is clear evidence of a partisan gerrymander in the sense we use the term in political science. But what about the law? Any determination of partisan gerrymander based on statistics will inevitably be arbitrary, an approach generally denounced by the courts.
Election outcomes are the only reason plaintiffs brought the cases. If these districts were electing seven Republicans, they wouldn't have bothered. They were motivated solely by "disparate impact", a principle often used as prima facie evidence of flawed processes. It permits judges to fixate on outcomes and ignore procedures, regardless of how fair they are. Disparate impact has placed practices such as school suspensions and traffic stops that often disproportionately affect African-Americans in legal jeopardy. But unlike race, remember, partisanship is not constitutionally protected.
What is more, the map now under review could plausibly return a very different congressional delegation. Partisan voter registration isn't the same as voting for candidates of a particular party. It doesn't constrain or obligate the registered voter in general elections. If it did, Republicans would hardly ever win statewide office in North Carolina. Campaigns matter, the political context of the time matters, and the quality of candidates matter.
The argument for the partisan gerrymander is further complicated by the "sorting" of voters - with Republicans increasingly living in the same neighborhoods, Democrats amongst their likeminded fellow residents. Even randomly drawn districts are likely to result in the kinds of high concentrations of partisans the plaintiffs in these cases complain about. There exists a "natural" partisan gerrymander.
As I've suggested, those wishing to outlaw the partisan gerrymander want to make constitutional rights out of whole cloth. This would constitute dangerous judicial activism or legislative creativity. An American has a right to vote and for it to be counted as one. He can also move to any political jurisdiction he wants. But he cannot demand to be placed into one of his choosing.
If you want to eliminate the partisan gerrymander, you have two options. The first is to change our electoral system so that legislators all run in a single statewide district or, European-style, the parties can dish out seats after receiving an allocation reflected by the total popular vote. Both methods eliminate redistricting entirely. The second is to overhaul the process by which maps are drawn. Perhaps North Carolina might take the approach of six Western states that use an independent commission. We would then be forced to accept the outcome - and thankfully never have to live with maps drawn by judges and statisticians.