Justices take federal courts out of political gerrymandering question

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The US Supreme Court ruled Thursday that the US Constitution gives state legislators the power to draw congressional districts and the federal courts should not interfere with whether gerrymandering has been too partisan. The North Carolina General Assembly meets in the State Legislative Building in Raleigh, seen here in Feb. 2018. Frank Taylor / Carolina Public Press

A sharply divided U.S. Supreme Court ruled 5-4 Thursday that a North Carolina partisan redistricting case challenging the state’s congressional districts be sent back to federal district court and dismissed.

Writing for the majority Chief Justice John Roberts said partisan redistricting is not an issue to be decided for federal courts. While state legislators in charge of the redistricting process quickly sought to assert that the ruling meant courts had no role to play, plaintiffs in the case said the ruling only applied to the federal bench, leaving open further challenges in state court.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Roberts wrote in a lengthy opinion, read aloud Thursday on the last day of the Supreme Court’s 2019 term.

“Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness.”

The Chief Justice was joined by conservative justices Neil GorsuchBrett KavanaughSamuel Alito and Clarence Thomas in ending the long legal journey of Rucho v. Common Cause, which challenged the state’s 10-3 split in congressional districts on the grounds that districts were drawn in an overly partisan manner.

Roberts wrote that none of the tests presented for determining what is overly partisan “meets the need for a limited and precise standard that is judicially discernible and manageable.”

In her dissent, also read from the bench, Associate Justice Elena Kagan said the majority’s decision was “tragically wrong” and deprived voters of the most fundamental of their constitutional rights.

“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote. “The practices challenged in these cases imperil our system of government.”

Joining the dissent were justices Ruth Bader GinsburgSonia Sotomayer and Stephen Breyer.

Kagan noted prior opinions that declared partisan gerrymandering to be at the root of creating a “toxic” and “tribal” legislative environment.

“Gerrymandering, in short, helps create the polarized political system so many Americans loathe,” she wrote, adding that it also makes it almost impossible for voters to extricate themselves from the system, pointing out that congressional imbalances in both the margins in North Carolina and Maryland had not budged.

“Is it conceivable that someday voters will be able to break out of that prefabricated box? Sure. But everything possible has been done to make that hard.”

The decision rocked critics of the state’s maps, which have been challenged on both racial and partisan grounds since they were introduced in the 2011 legislative session.

“This ruling is a bitter disappointment,” Bob Phillips, executive director of Common Cause North Carolina said in a statement. “And make no mistake about it, there are victims of this decision. The victims are those North Carolinians who do not have a voice in Washington because a narrow majority of the U.S. Supreme Court has condoned an abusive partisan gerrymander.”

Republicans, meanwhile, quickly asserted that the ruling puts the General Assembly solely in charge of efforts to rein in excesses in mapmaking.

“Today’s ruling establishes precedent that it is not the judicial branch’s responsibility to determine the winners and the losers,” said Rep. David Lewis, R-Harnett, who along with former state Senator Bob Rucho was one of the chief architects of the 2011 maps, said in a press conference late Thursday morning. “This is a complete vindication of our state and of our process.”

Michael Whatley, recently elected chairman of the North Carolina Republican Party hailed the ruling.

“We are pleased that the Supreme Court declined to overrule the sovereignty of states and has held that the power to draw Congressional Districts lies with state legislatures and not the courts,” Watley said.

Lewis defended the state’s redistricting saying the legislature uses “traditional redistricting principles, some of the most stringent in the country, and in alignment with previous court rulings.”

Lewis also called for Common Cause, one of the plaintiffs in the federal case to drop a partisan redistricting challenge in state court that is scheduled to begin next month.

Lewis said he is willing to begin negotiations on how to improve the state’s redistricting process.

Role for state courts

Lewis’ assertion that the courts have no role was quickly disputed.

“Today’s decision only applies to federal courts,” said Allison Riggs, senior attorney for the Southern Coalition for Social Justice, in an email response to Carolina Public Press.

“State supreme courts remain the ultimate arbiters of what state constitutions mean,” “Unfortunately, David Lewis’ statements today only prove that Chief Justice Roberts was, with all due respect, incorrect in assuming that today’s decision wouldn’t be read as an endorsement of extreme partisan gerrymandering.”

Riggs said the majority opinion cited approvingly of a Florida Supreme Court decision that struck down some 2012 congressional districts as partisan gerrymanders that violated the state constitution.

Although Roberts’ argument leans heavily on actions by state legislatures to remedy concerns about redistricting excesses, his opinion also appears to not rule out action in state courts.

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts states in the concluding section of the majority opinion.

Phillips, meanwhile, said Common Cause has no intention of dropping its lawsuit in state court despite the ruling and dismissed the idea put forth by Lewis that the two sides can’t negotiate while fighting court cases.

“We can walk and chew gum at the same time,” Phillips said.

“We can still pursue litigation, which we will, but we can also have that conversation for meaningful redistricting reform. If they’re serious, I’m serious. Let’s have at it.”

Oral arguments in the state partisan redistricting case are scheduled to start July 15.

Statement and tweets

The court’s decision drew strong comments on Twitter and other social media platforms as well as in official press releases from political figures and organizations, including some of the following:

NC Sen. Ralph Hise, R-Mitchell, (statement) – “The NC Supreme Court has already ruled on considering politics and other criteria, writing that ‘the General Assembly may consider partisan advantage and incumbency in the application of discretionary redistricting decisions.’ Now that the US Supreme Court has reached the same conclusion, all legal cases on this matter should end so we can move on.”

NC Democratic Party Chair Wayne Goodwin, (statement) – “For nearly a decade, Republicans have silenced the voices of North Carolinians using racial and partisan gerrymandering to pass extreme legislation and hold onto power at all costs. Today, the (US) Supreme Court rewarded undemocratically elected politicians who continue to show they will rig our state and our country to hold onto power no matter the cost. NC Democrats are committed to fighting for the fair maps and independent redistricting maps the people of our state deserve.”

NC Rep. Chuck McGrady, R-Henderson, (tweet) – “While it is unrealistic to think @CommonCause and others will automatically drop their lawsuit, perhaps with the SCOTUS decision it is time to try to resolve the issue before the next lawsuit ends up with the NC Supreme Court. Folks know what the PA Supreme Court did.”

NC Sen. Jeff Jackson, D-Charlotte (tweet) – “This will go down as one of the worst and most destructive decisions in the history of the court. You, the voter, just lost an enormous amount of political power. Even worse: it was transferred to politicians who are absolutely going to use this power against you.”

Conservative foundation president and columnist John Hood (tweet) – “Redistricting-reform proponents have always known that serious consideration of their various proposals would have to come after the US Supreme Court weighed in. Now that it has, I predict discussion, amending, coalition-building. Let’s do this.”

Gov. Roy Cooper, a Democrat (statement) — “Now the fight against extreme partisan gerrymandering that undermines democracy moves to state courts and the ballot box. The battle is far from over.”

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