The Stakes of the Supreme Court’s Partisan Gerrymandering Case in Wisconsin

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On June 19, the Supreme Court announced it will hear a case on partisan gerrymandering in Wisconsin this fall. Conservative Justice Anthony Kennedy is expected to be in the familiar position of the swing vote as challengers seek to provide him with a standard for policing partisan gerrymandering that he will like.

This comes after several recent decisions by the Supreme Court regarding racial gerrymandering in North Carolina. A common thread through them all: State lawmakers discriminated against African American voters when drawing new voting districts in 2011.

The rulings are important for several reasons, including this: One recent Supreme Court ruling, which affirmed a lower court’s decision that two congressional districts were unconstitutional racial gerrymanders, could become a major precedent case. The ruling will likely affect the battle over the legality of partisan gerrymandering as well.

The upcoming Supreme Court case regarding partisan gerrymanders in Wisconsin could set a broader precedent to prevent this type of map-rigging — or it could fully endorse the practice of disenfranchising voters based on their political party. If the court rules against such gerrymanders, it will be far more difficult for state legislators to craft districts that are grossly tilted in their favor. Over time, residents will come to live in districts in which they are fairly represented. On the other hand, if the court rules in favor of partisan voting districts, voter disenfranchisement will get even worse, and legislative bodies will continue their rapid polarization.

Even after the recent favorable court outcomes for people opposed to racial and partisan gerrymandering, the right wing still has access to a wide array of voter-suppression tactics that it can use to aid its election chances. A looming and misleadingly named “Election Integrity Commission,” co-chaired by one of the nation’s biggest vote suppressors, Kris Kobach, does not bode well for voting rights. Nonetheless, decisions against gerrymandering in North Carolina and other states can serve as a crucial step toward achieving free and fair elections in the US.

Party as a Proxy for Race

Election law expert Rick Hasen analyzed the May 22 Supreme Court decision affirming a lower federal court’s ruling that North Carolina legislators used race as the predominant factor when redrawing two North Carolina congressional districts. In two footnotes in the opinion, Justice Elena Kagan connected political party with race.

“This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states,” writes Hasen.

Some experts disagree, but Hasen’s argument is strong. Legislators claimed they drew lines only based on voters’ party affiliation, but Kagan wrote that in a Southern state such as North Carolina, party affiliation and race are essentially the same thing. Hasen thinks voting rights advocates in other Southern states with similar histories and demographics will use Kagan’s decision to link race and party and thereby strike down partisan gerrymandering.

“It’s the first time the court has used party as a proxy for race,” redistricting expert Doug Johnson told the Washington Post. “It opens the door to throwing out partisan gerrymandering as well.”

The Voting Rights Act of 1965 stipulates that some districts must be drawn to allow minority populations to elect their preferred candidates. But today, Republicans are drawing districts with far more Black residents than are needed for the community to elect its favored candidates. In other words, mapmakers need to consider race to some degree in order to comply with the Voting Rights Act but must not use the law as an excuse to pack voters of color into a small number of districts, diluting their voting power elsewhere.

The specific, 5-3 ruling on North Carolina’s 12th District, that the Voting Rights Act does not require mapmakers to draw heavily Black districts, follows similar decisions in other Southern states, including Alabama, where a federal court ruled in January that 12 legislative districts are racial gerrymanders. In Virginia, the US Supreme Court instructed a federal district court to reconsider the constitutionality of 11 state House districts that plaintiffs say are racial gerrymanders. Also this year, another federal court ruled against racial gerrymanders in Texas.

The Supreme Court unanimously decided that North Carolina’s 1st Congressional District was indeed a racial gerrymander. Because of the rulings on both districts, the high court sent a different racial gerrymandering case regarding both Congressional and legislative districts back to the North Carolina Supreme Court, which twice upheld the districts. But this time, after last year’s elections, the court has a narrow liberal majority, and in light of the US Supreme Court ruling, it is likely to be harder on the mapmakers.

Gerrymandering Cases Are Piling Up

On June 5, two weeks after the ruling on the North Carolina congressional districts, the Supreme Court affirmed a lower federal court’s ruling in another separate case that 28 state legislative districts were also racial gerrymanders. These illegal districts aided the North Carolina GOP in building on its 2010 legislative majorities, which then passed a slew of unconstitutional, discriminatory laws, including a major voter suppression bill, a same-sex marriage ban and a notorious anti-LGBTQ bathroom bill.

Rev. Dr. William Barber, who led the North Carolina NAACP for over a decade and spearheaded its Moral Monday protest movement, is calling for the General Assembly to cease passing any new laws until the legislative districts are redrawn and elections are held in them this year.

“The courts ruled that this is about … systemic, surgical, intentional racism,” said Barber at a conference on June 13. “Currently, we have an unconstitutionally constituted, illegal body leading our state legislature…. They’re in office, according to the courts, because … they used racial methods to cheat. And then with illegal power, they then passed bills that have hurt all North Carolinians.”

While several redistricting lawsuits are pending before the Supreme Court and federal courts, the most attention is currently focused on the case in Wisconsin that the Supreme Court just decided to accept. Wisconsin doesn’t have the same socio-political climate that the South does, so this ruling will have larger national implications than North Carolina’s.

The Supreme Court has never found partisan gerrymandering unconstitutional, but a lower federal court ruled that Wisconsin’s partisan voting maps violated the First Amendment and the equal rights protections of the Constitution. It is the first federal court to do so in three decades.

If the Supreme Court affirms the lower court’s ruling in the Wisconsin case, it will inevitably usher in not only fairer districts but also a different dynamic in Congress. As it stands today, the chamber is full of completely uncompetitive districts that are far easier for fringe candidates to win. Without racial and partisan gerrymandering, districts will be more competitive and thus, candidates will need to appeal to voters with a wider range of political opinions.

The Effects of Racial Gerrymandering

After Republicans took over the North Carolina state legislature in 2010, the national Republican State Leadership Committee and conservative mega-donor Art Pope aided their dramatic redistricting of state and federal voting districts. The result: Black voters, who typically vote Democratic in the state, were packed into a small number of districts, diluting their voting power elsewhere.

As a result, in 2012, nine Republican and only four Democratic US House candidates won their elections, contrasting with wins by seven Democrats and six Republicans two years earlier. Fifty-one percent of North Carolina voters cast their ballots for Democrats in 2012, yet they were underrepresented in Congress because of the maps. Today, 10 Republicans represent North Carolina in the House out of the state’s 13 members.

And the same thing happened with the state legislative districts. In 2012, the GOP gained supermajorities in both state legislative chambers. Former Indy Week reporter Paul Blest found that four years later in 2016, Republican state Senate candidates received 48 percent of the votes but 70 percent of Senate seats as the GOP held onto its supermajorities.

Targeting Black Voters “With Almost Surgical Precision”

Racial gerrymandering is just one tactic out of a larger arsenal that Republican legislatures use to restrict the Black vote.

In North Carolina, the 2012 election resulted in the ascension of Republican Pat McCrory to the governor’s mansion, and he was remarkably eager to sign discriminatory legislation despite having run for office as a moderate. In 2013, after the Supreme Court gutted the Voting Rights Act of 1965, state lawmakers passed one of the most restrictive voting laws in recent memory, dubbed by critics as the “monster voter suppression bill.”

Like the gerrymandered districts, the elections omnibus bill was struck down in federal court because of legislators’ clear discriminatory intent against Black voters. On May 15, the Supreme Court decided not to hear an appeal of a Fourth Circuit Court of Appeals decision overturning the “monster” bill, which included a slew of voting restrictions, such as voter ID, shortened early voting, and the elimination of same-day registration and a high school preregistration program. In the earlier decision, Circuit Judge Diana Gribbon Motz wrote, “the new provisions target African Americans with almost surgical precision.”

Nevertheless, North Carolina Republicans and their right-wing allies are already discussing a new voter ID bill. Voting rights veteran and Democracy North Carolina Executive Director Bob Hall said in a statement after the recent SCOTUS decision, “Any attempt to revive the Monster Law is not based on facts but would reflect a renewed campaign to rig the voting system for the personal and partisan gain of the political elites now in power.”

The GOP in North Carolina and around the country will, no doubt, continue its efforts to suppress the vote, including spreading lies and misinformation about alleged voter fraud, which is generally statistically insignificant, in order to strike voter rolls and justify harsh anti-voting measures. Still, it seems, voting districts may be more difficult to gerrymander based on race, and possibly party, going forward.