When North Carolina’s Republican legislative leaders have seen their work struck down in court as unconstitutional — as they have many times — they have frequently responded by attacking the judge or judges as partisan hacks.
That approach won’t work if the conservative-leaning U.S. Supreme Court surprises the nation by throwing out the congressional district map that N.C. legislators explicitly drew to elect as many Republicans as possible.
The court on Friday agreed to hear a challenge to the North Carolina map, as well as one to a Maryland congressional district. That was big news, because while the court has addressed racial gerrymandering, it has never ruled on whether partisan gerrymandering can be unconstitutional. In taking these cases, the court could for the first time establish whether crafting districts to help one party over the other is permissible.
Despite the odds, we and most N.C. voters hope the court does away with the practice or severely limits it. North Carolina’s leaders acknowledge that they drew the lines to ensure that 10 Republicans were elected to the state’s 13 congressional seats. Rep. David Lewis said they did so “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
Such an approach is the height of hubris and an insult to voters, whichever party is in charge. It essentially robs millions of voters of their voice, since the outcome is preordained. In a more narrow legal sense, it also could violate the First Amendment right to association, as now-retired Justice Anthony Kennedy argued in 2004. Democracy requires people to join together to advance their political beliefs. So when a state makes that nearly impossible, “First Amendment concerns arise.”
Long ago Senate president pro tem Phil Berger, a Republican, co-sponsored five bills over eight years to create independent redistricting commissions. Now that his party is in the majority, he sees no need for change.
Unfortunately, it’s hard to be optimistic about the Supreme Court’s view of the N.C. case (which is called Rucho vs. Common Cause). The conservative justices are not inclined to think the courts should meddle in states’ political affairs. When the moderate Kennedy was on the court, there was a chance he could side with the court’s four liberals. His replacement, Brett Kavanaugh, has not ruled on partisan gerrymandering cases before, but there’s little reason to think he would break with his fellow conservatives in this case. Given his clear partisan leanings revealed in his confirmation hearings, it’s almost certain he won’t.
The court, which will hear arguments in March and likely rule by June, will decide only if partisan gerrymandering is unconstitutional. It will not rule on whether it’s a wise practice that benefits this country. Clearly it’s not and it doesn’t. North Carolina should follow the lead of several other states that have created independent commissions, with legislative input, to draw maps.
Only then will political seats be won the old-fashioned way: By convincing voters you are the best candidate, on a level playing field.