After the U.S. Supreme Court ruled North Carolina's Congressional Districts were racially gerrymandered in February 2016, N.C. Rep. David Lewis, R-District 53, proposed a solution to his Republican colleagues: a partisan gerrymander.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” Lewis, Joint Select Committee on Congressional Redistricting co-chairperson, said in a committee hearing.
In November 2016, Republicans won 10 of 13 Congressional seats, despite receiving only 53 percent of votes across the state. Two years later, Democrats across the country flipped 41 GOP seats. In North Carolina, Republicans’ total vote share slimmed to 50.3 percent.
The 10 Republican districts remained red.
Michael Bitzer, a professor of politics and history at Catawba College, said Democrats in the state legislature have also gerrymandered in the past, creating a 7-6 majority in the U.S. House.
“Before 2010, Democrats were pretty good at diffusing the districts to where Democrats would have at least a slight advantage or be competitive in a state that’s really more center-right than moderate,” Bitzer said.
Bitzer said Republican’s recent success has been a combination of Republican redistricting and predictable voting patterns.
“What happened (after 2010) was, Republicans were able to redraw the districts not just by packing Democrats into districts, but by also relying on voter loyalty across the state,” Bitzer said. “North Carolina voters, who are segregating themselves and putting themselves in like-minded communities, are very loyal voters that’ll vote down the ballot for one party.”
Partisan gerrymandering has been recently accelerated by developments in technology, specifically Geographic Information Systems, Bitzer said. GIS collects and analyzes data to create layers of information in maps.
“Drawing districts now is pretty much left up to computers as opposed to hand-drawing maps,” Bitzer said. “GIS has really revolutionized gerrymandering with all of the data and predictive performance of how voting districts will tend to behave politically.”
Bob Phillips, executive director of Common Cause, said it would take months to draw maps 30 years ago. Today, it takes only seconds.
“To be able to do that instantaneously, with more preciseness than we’ve ever seen, can create maps where racial and partisan gerrymandering come into play, with no guesswork involved,” Bob Phillips said.
In 2019, the legality of partisan gerrymandering is being challenged in potentially landmark cases on the state and federal level.
Rucho v. Common Cause is a lawsuit charging N.C. congressional districts of violating the Constitution's First Amendment, the Equal Protection Clause of the 14th Amendment and Article I, sections 2 and 4, which is the Election Clause. The case is set to be heard in the U.S. Supreme Court on March 26.
The crux of the lawsuit is to eliminate any political data involved in redistricting and to mandate drawing maps blind of political consideration, Phillips said.
Johns Hopkins University professor Steven Salzberg said he thinks a bill to create proportional representation could be a solution to gerrymandering. His idea is to designate two representatives for each district and assign them a vote proportional to their share of the electorate.
“This will effectively eliminate gerrymandering because the delegation from any state will have a number of votes that closely matches the relative proportions of Democrats and Republicans in that state, regardless of how the districts are drawn,” Salzberg said. “For example, a district with an 80/20 balance — let's say 80 percent Democrat, 20 percent Republican — will have two representatives, and the Democrat will get 0.8 votes while the Republican will get 0.2 votes.”
Phillips said his organization filed Rucho v. Common Cause in the federal circuit, rather than state courts, considering former Justice Anthony Kennedy was critical of partisan gerrymandering. After Kennedy’s retirement, however, Phillip’s said the case will likely hinge on Chief Justice John Roberts' swing vote.
“What looks like five firm conservative votes on the court now, I think it’s going to be harder because those conservatives are going to argue there’s no legal standard we can properly judge this,” Phillips said.
Phillips said though gerrymandering should not be a partisan issue, justices that belong to the minority party are typically more supportive of gerrymander reform.
Common Cause v. Lewis, a lawsuit challenging gerrymandered state legislature districts, was filed in N.C. state courts under violations of the state constitution. The case will likely head to the N.C. State Supreme Court, which has five Democrats and two Republicans.
“We feel like we have a fair shot in both venues, but the challenge with the state court is more streamlined,” Phillips said. “The state legislature’s battle is slowing the train down and stopping us from being able to get this tried and decided before the end of the calendar year, when candidates start filing.”
Republican state legislators have created a federal appeal of Common Cause v. Lewis, which was tossed out of a U.S. District Court. Common Cause hopes to have this case settled before 2020.