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Wednesday, January 10, 2018


A partisan gerrymander, pure and simple

by Tom Sullivan

A federal court has once again struck down district maps drawn by North Carolina Republicans as unconstitutional gerrymanders. The ruling was precedent-setting for why the court deemed the maps unconstitutional. It was not because of racial gerrymandering:

The ruling was the first time that a federal court had blocked a congressional map because of a partisan gerrymander, and it instantly endangered Republican seats in the coming elections.

Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in North Carolina’s Legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans. The result, Judge Wynn wrote, violated the 14th Amendment’s guarantee of equal protection.
The maps not only deny a voice to Democrats in the ten Republican-majority districts, but to Republicans in the three districts Republican lawmakers reserved for Democrats.

Courts rejected previous Republican-led attempts at redrawing racially gerrymandered state legislative maps and handed over the task to a special master. Tuesday's decision by the 4th U.S. Circuit Court of Appeals repeats that formula.

The three-judge panel, by now weary of the four-corners delay state Republicans have run since issuing the maps in 2011, gave the majority lawmakers two weeks to redraw the congressional map thay had already redrawn or it would turn over the process to a special master.

(Owing to the seesawing effect of these follies, I voted in North Carolina's 11th Congressional District in 2010, voted in the 10th Congressional District in 2012, 2014, and in the 2016 primaries, and was back in the 11th in time for the 2016 general election — all without changing address.)

Lawmakers are certain to appeal to the U.S. Supreme Court.

At Election Law Blog, Rick Hasen examined the ruling, noting:
The result is not a big surprise given what North Carolina did here. After its earlier redistricting was declared a racial gerrymander, it came up with a new plan using only political data that it described as a partisan gerrymander on its own terms. It did this as a defense against a future racial gerrymandering claim. As the court explained at page 16, NC “Representative Lewis said that he “propose[d] that [the Committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats.” If there’s any case that could be a partisan gerrymander, it’s this one.

The Supreme Court is already considering two partisan gerrymandering cases, one from Wisconsin and one from Maryland. No doubt NC will appeal this case to the Supreme Court, which is likely to hold it in light of the decision in those cases (it would be too late, absent extraordinary briefing, to set the case for argument this term). It likely will be sent back to this court to reconsider in light of what the Court does.
Hasen's colleague Nicholas Stephanopoulos adds that the court rejected the defendants' arguments against using empirical evidence of partisan discrimination to reject their maps:
The court, though, observed that “plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward,” adding that “these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards.” The court further criticized the defendants for their “cynical” view that analysis should be discarded if it has “its genesis in academic research.” “It makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods.” “The Constitution does not require the federal courts to act like Galileo’s Inquisition and enjoin consideration of new academic theories.”
Not that Republican lawmakers have any history of doing that.

As satisfying as it is to see Lewis and his oleaginous associates slapped down again, it is frustrating that Democrats only recourse these days is the courts. With Donald Trump in the White House, that last line of defense will not hold much longer if Democrats do not regain control of the Senate this fall. As I continue to remind readers, progressives' fixation on Washington is misplaced. The real action, the gerrymandering action, takes place at the state legislative level where Republicans dominate.

Regaining control of those legislatures has been complicated by the sort of gerrymandering North Carolina Republicans have perfected. Undoing that control will take multiple cycles and commitment to that local work.

It is possible the court's decision in this case will have a ripple effect that will impede further shenanigans in other Republican-dominated states. But the only longer-term solution is an electoral one.

Gaining U.S. Senate seats this fall may be the only near-term leverage Democrats have for preventing Republicans from enhancing the courts the way they have used mapping Viagra to keep their state and federal majorities artificially firm.

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Request a copy of For The Win, my county-level election mechanics primer, at tom.bluecentury at gmail.