Legal Footnote Highlights Uncertainty About N.C. Election Maps | Eastern North Carolina Now

    Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Mitch Kokai, senior political analyst for the John Locke Foundation.

    If the U.S. Supreme Court is ready to drop the topic of partisan gerrymandering, a legal brief filed this month on behalf of N.C. legislative leaders could help bolster their decision.

    Yet a single footnote in the 75-page document offers a stark reminder: A favorable decision in Washington, D.C., wouldn't settle the gerrymandering issue completely for North Carolina.

    The nation's highest court will address gerrymandering in North Carolina - again - next month. Supreme Court justices will hear oral arguments March 26 in Rucho v. Common Cause. It's a case challenging North Carolina's current congressional election map. Opponents contend the map is unconstitutional based on overly partisan gerrymandering.

    It's the second time this particular case has reached the high court. The legal brief filed Feb. 8 urges justices to ensure the case has no more return trips. The document also calls on the Supreme Court to wash its hands completely of any future complaints involving partisan gerrymandering.

    A split three-judge trial court panel's decision in Rucho "confirms the more fundamental reality that courts simply do not have any business making value-laden judgments about how much politics is too much in a process that will never be free of politics," according to the brief. "This Court should declare partisan gerrymandering claims nonjusticiable once and for all and put an end to the effort to reassign the inherently political task of districting to the federal courts."

    A claim is "nonjusticiable" if it's not possible for a court to settle the issue. The N.C. lawmakers' brief turns to both constitutional history and court precedent to explain why partisan gerrymandering fits that bill.

    Though the brief does not say so directly, the concept of "partisan gerrymandering" itself is redundant. Every instance of gerrymandering involves partisan purposes. American and N.C. history offer plenty of examples.

    The brief traces the first case of gerrymandering in North Carolina to 1732, when "the governor was engaged in dividing precincts" in a way to benefit his political interests. That episode took place more than four decades before the American Revolution. The incident occurred 55 years before the deliberations that generated the U.S. Constitution.

    Thus gerrymandering was "alive and well (though not yet known by that name) at the time of the framing." Those who designed the Constitution and those who approved the document knew about the practice.

    The Constitution's framers could have fought the influence of gerrymandering by entrusting federal courts with oversight of electoral mapmaking. They rejected that option.

    "For most of the history of the Republic, the notion that the answer to partisan gerrymandering would lie in the federal courts would have been quite remarkable," according to N.C. legislators' brief. "The framers, in their wisdom, delegated the sensitive task of federal oversight of state-enacted congressional districting legislation to Congress, not the federal courts."

    The U.S. Supreme Court opened the door to partisan gerrymandering complaints in 1986, in the Indiana case of Davis v. Bandemer. Though the court suggested gerrymandering could be too partisan to survive a constitutional challenge, a majority of justices couldn't agree in that case on a standard that would help them decide how much partisanship was "too much."

    For more than 30 years, justices have struggled with the issue of finding a "judicially manageable standard" in partisan gerrymandering cases. Now, N.C. lawmakers' brief argues, it's time to shut the door.

    "[T]he courts are simply being invited to invent a test for determining when political branches organized along partisan lines and deliberately assigned an inherently political task engage in 'too much' partisan activity," the brief contends. "The Constitution provides no basis for a judicial answer to that question, and forging ahead nonetheless threatens to undermine the independence and integrity on which [federal] courts depend. ..."

    Gerrymandering foes spent years targeting Justice Anthony Kennedy. They believed he would provide a crucial fifth Supreme Court vote in favor of a standard for determining overly partisan gerrymandering.

    Now that Brett Kavanaugh has succeeded Kennedy, some observers believe the court now has five votes to reject any such test. They believe five justices might be willing to rule that partisan gerrymandering is a political issue that courts should avoid completely.

    Thus the Supreme Court's ruling in Rucho could end federal partisan gerrymandering cases once and for all.

    That wouldn't settle the issue for North Carolina.

    Footnote six at the bottom of page 33 in the N.C. lawmakers' brief explains why. It reminds readers that the U.S. Constitution's Elections Clause gives Congress oversight over state rules for congressional elections. That clause does not address state and local elections.

    "[A] justification for federal intrusion into state and local elections, as opposed to congressional elections, did not even occur to the framers," the footnote explains. "Instead, the framers left that authority with the States and did not sub silentio [without notice] transfer it to the federal courts."

    In other words, federal courts have nothing to say about partisan gerrymandering claims in state courts. A ruling from Washington, D.C., throwing out the Rucho case would not block an ongoing state court case challenging N.C. House and Senate election maps.

    By the time those Republican-drawn maps reach the end of the state's legal process, Democrats are likely to hold a 6-1 majority on North Carolina's highest court. No one can say for certain how state Supreme Court justices would rule. It's safe to assume they wouldn't have much interest in helping the GOP preserve any partisan advantages.

    Advocates of redistricting reform are drawing attention to this unsettled state of legal affairs. They are launching a concerted effort again this year to change the way North Carolina draws its election maps.

    Without legislative action, it's likely that partisans will continue to wage legal battles over gerrymandering. As footnote six suggests, the primary battlefield will shift from Washington, D.C., to Raleigh.