In a potential landmark court case on partisan gerrymandering, the U.S. Supreme Court heard oral arguments regarding North Carolina’s lopsided congressional districting on March 26.
Allison Riggs, an attorney representing the League of Women Voters, said the court could set a dangerous precedent by deeming extreme partisan gerrymandering constitutional and could exacerbate future gerrymandering.
“This case is not the first North Carolina voting case to reach this court this decade,” she said. “But it represents the most extreme example of a non-responsive legislature that believes that this court will implicitly endorse unfettered partisan manipulation in redistricting by declining to rein in this most egregious example."
The case Riggs presented against the North Carolina maps was based on a three-prong test for diluting votes, including partisan intent in drawing districts to disadvantage a political party, along with effecting the state and district level and justifying packing or dividing voters.
Jonathan Mattingly, a math professor at Duke University, simulated over 24,000 congressional maps in North Carolina with nonpartisan criteria that were presented at the hearing. Fewer than 0.7 percent, approximately 162 maps, resulted in a 10-to-3 Republican majority.
Paul Clement, an attorney representing N.C. GOP lawmakers, said 162 of 24,000 nonpartisan maps was a significant enough number that partisan intent could not be proven.
He said if the Supreme Court decided to rule against partisan gerrymandering, it could result in redistricting cases flooding the court’s docket and endowing the court with significant political power.
“And once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics,” he said.
Michael Bitzer, a politics and history professor at Catawba College, said the Court faces a dilemma in how to quantify and implement a measurable rule against partisan gerrymandering. Without this, it could see more redistricting cases moving forward, he said.
“I wouldn’t put anything past our polarized environment to say, 'Well I didn’t get my fair share, so I’ll see you in court,'” he said.
Justice Brett Kavanaugh, the most recent appointment who has yet to rule on a gerrymandering case, said he did not dispute that extreme partisan gerrymandering is a threat to American democracy. However, he asked whether states can resolve the issue on their own or if the matter is best suited for Congress.
“Other options don’t relieve this court of its duty to vindicate constitutional rights,” Riggs replied.
While numerous states, including Colorado in 2018, have established independent redistricting commissions through citizen ballot initiatives, nothing like this exists in North Carolina.
The Court wondered if there's a better alternative should it set a legal standard against partisan gerrymandering.
The Court reaffirmed a “one-person, one-vote” ruling in 2016, saying one person’s vote cannot be weighted less than another. However, the argument has yet to be applied toward proportional representation, which is one alternative system.
Asked whether he wanted the Court to mandate proportional representation, Emmet Bondurant, an attorney for the plaintiff Common Cause, said his argument was based in partisan discrimination, not proportionality.
“Not at all. Our position is, you cannot discriminate intentionally against political parties and voters based on their political views and their voting history,” he said.
However, Bitzer said proportional representation could be a clear, though transformational, precedent if the court wished to reduce partisan gerrymandering.
“With our winner-take-all, you get one more vote than the person who comes in second, you get 100 percent of that congressional seat,” he said. “The question becomes, is there a way to allocate those seats other than a winner-take-all system? Do you go to a multi-member districts — make the entire state a congressional district — and allocate the seats proportionally?”
The Supreme Court is set to write an opinion on the North Carolina congressional maps this June.