Partisan gerrymandering is back before the U.S. Supreme Court in a case stemming from the latest attempt by North Carolina's Republican-led legislature to draw U.S. House districts favoring GOP candidates.
The question justices will consider Wednesday is whether state courts can rely on their state constitutions — as the North Carolina Supreme Court did — to strike down politically rigged voting districts for congressional elections.
North Carolina's top Republican lawmakers contend they can't. Rather, they assert that the U.S. Constitution gives power over federal elections only to state legislatures and Congress — an argument known as the "independent state legislature" theory. A broad embrace of the theory by the high court could upend hundreds of election laws across the U.S.
A ruling for North Carolina's legislature also could affect redistricting lawsuits in states ranging from Republican-led Ohio to Democratic-led New Mexico. It also could call into question new congressional maps enacted by other state courts after the 2020 census, including in Democratic-dominated New York.
The stakes are high because Republicans won only a slim House majority in the November elections, giving them just enough power to challenge President Joe Biden's agenda. Any ruling that causes some districts to be redrawn likely would kick in for the 2024 elections.
WHAT IS GERRYMANDERING?
Gerrymandering is when a political party in power manipulates voting district boundaries to make it harder for the opposing party to win. That typically is done by packing opponents’ voters into a few districts and spreading out others among multiple districts to dilute their voting strength.
Throughout U.S. history, both Republicans and Democrats have gerrymandered after the once-a-decade census, when districts are redrawn to account for population changes.
Republicans controlled more state capitols after the 2010 census and used redistricting to their advantage, prompting a flurry of lawsuits from Democrats. Those suits culminated in 2019, when the U.S. Supreme Court ruled in another North Carolina case that federal courts have no role in deciding partisan gerrymandering disputes. Even so, the majority opinion suggested that state courts still could hear such claims.
Freed from federal constraints, partisan gerrymandering surged after the 2020 census. So did the number of lawsuits in state courts alleging that partisan gerrymandering violated state constitutions.
FREE AND FAIR ELECTIONS
A 2018 decision by the Pennsylvania Supreme Court provided a template for voting-rights advocates to pursue gerrymandering claims in state courts. Although the Pennsylvania Constitution contains no specific mention of partisan gerrymandering, the state's high court said it was prohibited under a state constitutional provision requiring "free and equal” elections.
The Pennsylvania court struck down U.S. House districts enacted by the Republican-led Legislature and governor after the 2010 census and imposed new districts. The first election under that court-imposed map shifted the state's congressional delegation from a 13-5 Republican majority after the 2016 election to a 9-9 split between Republicans and Democrats after the 2018 election, better reflecting the battleground state's overall partisan composition.
In 2019, a panel of North Carolina judges used similar reasoning to block U.S. House districts passed by the Republican-led General Assembly. They said the districts likely ran afoul of state constitutional provisions guaranteeing “free” elections, “equal protection of the laws" and the right to free speech and assembly. The legislature subsequently passed revised districts for the 2020 election, and the GOP's congressional majority over Democrats shrunk from 10-3 to 8-5.
Voting rights groups raised a similar court challenge when North Carolina's congressional districts were redrawn again by Republican lawmakers after the 2020 census, which gave the state an additional House district. The state Supreme Court struck down the districts on similar grounds and allowed a temporary new map approved by a three-judge panel to be used for the 2022 election, a map that resulted in Democrats and Republicans equally splitting the state's 14 congressional districts. It's that case that's now pending before the U.S. Supreme Court.
A decision in the North Carolina case could affect ongoing court battles involving Kentucky, New Mexico and Utah. Lawsuits in each of those states make similar claims that U.S. House districts enacted by state legislatures after the 2020 census violated their state constitutions.
The New Mexico Supreme Court is to hear arguments in January in a lawsuit brought by Republicans against the U.S. House districts enacted by the Democratic-controlled Legislature and governor. The suit contends the districts diluted the conservative vote and violated the state constitution's “equal protection” guarantee.
In Kentucky, Democrats have asked the state Supreme Court to overturn a lower court ruling that partisan gerrymandering is not prohibited by the state constitution. The lawsuit against the U.S. House districts enacted by the Republican-led Legislature cites the state constitution's guarantee of “free and equal” elections.
In Utah, the Republican-led Legislature and governor ignored the recommendations of an independent commission and enacted their own U.S. House districts after the census. A lawsuit pending in state court claims the map violates the state constitution's guarantee of “free" elections, “equal protection" as well as the freedoms of speech and assembly. Attorneys for the Legislature have asked the state Supreme Court to halt the case.
OTHER COURT CASES
The outcome of the North Carolina case also could have implications for Ohio and New York, where state courts ruled that U.S. House maps enacted after the 2020 census violated specific state constitutional prohibitions against partisan gerrymandering.
Ohio's Supreme Court twice ruled that Republicans who control the redistricting process violated a voter-approved constitutional provision against unduly favoring political parties. But the 2022 election went forward anyway using the stricken districts as Republicans appealed the decision to the U.S. Supreme Court.
It's unclear whether the nation's high court will take up the Ohio case. But a decision in favor of North Carolina's GOP lawmakers could pave the way for Ohio's Republican officials to ignore their own court's directives.
Earlier this year, New York's highest court struck down congressional districts enacted by the Democratic-led Legislature after an independent commission failed to agree on a plan. The court said lawmakers violated a voter-approved state constitutional prohibition against favoring particular political parties. A judge then imposed new U.S. House districts for the 2022 election that were not as skewed toward Democrats.
A ruling for North Carolina's Republican lawmakers could create an avenue for New York Democrats to argue that state judges had no authority to throw out the map they originally passed and impose a new one.
Some conservative lawyers have urged the high court to issue a comparatively narrow ruling that would still allow state courts to overturn maps in states such as New York, where voters have explicitly approved anti-gerrymandering initiatives.
A Maryland court this year also ruled that the U.S. House map passed by the Democratic-led Legislature was an “extreme gerrymander” that violated state constitutional requirements for compact districts and “free" elections. But the court never imposed a new map. Instead, lawmakers worked with the outgoing Republican governor to enact a new map. Democrats will have full control of state government when the new governor is sworn in next month.