Federal Court Strikes Down North Carolina Congressional Districts As Partisan Gerrymandering
The Fourth Circuit Court of Appeals has become the latest Federal Court to weigh in on the issue of partisan gerrymandering, with a unanimous ruling from a three-judge panel finding that North Carolina must redraw its Congressional District map because the districts it created were biased in favor of one political party:
A panel of federal judges struck down North Carolina’s congressional map on Tuesday, condemning it as unconstitutional because Republicans had drawn the map seeking a political advantage.
The ruling was the first time that a federal court had blocked a congressional map because of a partisan gerrymander, and it instantly endangered Republican seats in the coming elections.
Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in North Carolina’s Legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans. The result, Judge Wynn wrote, violated the 14th Amendment’s guarantee of equal protection.
The ruling and its chief demand — that the Republican-dominated Legislature create a new landscape of congressional districts by Jan. 24 — infused new turmoil into the political chaos that has in recent years enveloped North Carolina. President Trump carried North Carolina in 2016, but the state elected a Democrat as its governor on the same day and in 2008 supported President Barack Obama.
The unusually blunt decision by the panel could lend momentum to two other challenges on gerrymandering that are already before the Supreme Court — and that the North Carolina case could join if Republicans make good on their vow to appeal Tuesday’s ruling.
In October, the court heard an appeal of another three-judge panel’s ruling that Republicans had unconstitutionally gerrymandered Wisconsin’s State Assembly in an attempt to relegate Democrats to a permanent minority. In the second case, the justices will hear arguments by Maryland Republicans that the Democratic-controlled Legislature redrew House districts to flip a Republican-held seat to Democratic control.
The Supreme Court has struggled without success for decades to develop a legal standard for determining when a partisan gerrymander crosses constitutional lines. The court once came close to ruling that such cases were political matters beyond its jurisdiction. But the rise of extreme partisan gerrymanders in the last decade, powered by a growing ideological divide and powerful map-drawing software, has brought the question back to the justices with new urgency. A Supreme Court ruling outlawing at least some such gerrymanders could reshape the political landscape.
Fights over voting rights and election procedures have often taken center stage in Raleigh, North Carolina’s capital, and Tuesday’s ruling noted that “partisan advantage” had been a criterion lawmakers used when mulling how to map the state.
Republican officials in the General Assembly said Tuesday evening that they intended to appeal the ruling, which many elected officials and political strategists were still scrambling to digest. Dallas Woodhouse, the executive director of the North Carolina Republican Party, criticized Judge Wynn and accused him of “waging a personal, partisan war on North Carolina Republicans.”
The ruling left little doubt about how the judges assessed the Legislature’s most recent map. Judge Wynn, who sits on the United States Court of Appeals for the Fourth Circuit and was a member of a special panel considering the congressional map, said that “a wealth of evidence proves the General Assembly’s intent to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination of the state’s congressional delegation.”
Most federal lawsuits are first heard by a district court, and later — if needed — by an appeals court and the Supreme Court. But under federal law, constitutional challenges to the apportionment of House districts or statewide legislative bodies are automatically heard by three-judge panels, and appeals are taken directly to the Supreme Court.
Election law expert Rick Hasen summarizes the court’s 205-page opinion:
First, the decision demonstrates the manageability of the partisan gerrymandering test that was proposed in Whitford and applied here too. Under this test, a district map is invalid if (1) it was enacted with the discriminatory intent of benefiting a particular party and handicapping its opponent; (2) it has produced a discriminatory effect in the form of a large and durable partisan asymmetry in favor of the mapmaking party; and (3) no legitimate justification exists for this effect. Two federal courts and five judges have now employed the test without apparent difficulty. Even more encouragingly, the five judges were appointed by Carter, Carter, Reagan, George W. Bush, and Obama. In an area of law where outcomes often seem to follow party, this degree of bipartisan agreement is unusual and impressive.
Second, the court properly distinguished between the legal standard itself (the above three-part test) and quantitative evidence that is used to prove violations of the standard. This distinction eluded the defendants both here and in Whitford, who persistently conflated social science metrics with the underlying constitutional command. The court, though, observed that “plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward,” adding that “these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards.” The court further criticized the defendants for their “cynical” view that analysis should be discarded if it has “its genesis in academic research.” “It makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods.” “The Constitution does not require the federal courts to act like Galileo’s Inquisition and enjoin consideration of new academic theories.”
Third, the court clearly understood the core harm of partisan gerrymandering: that it entrenches the gerrymandering party in office, awarding it more legislative power than it deserves given its actual appeal to the electorate. The court repeatedly defined gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” The court also observed that gerrymandering “constitutes a structural [constitutional] violation because it insulates Representatives from having to respond to the popular will.” And warming the heart of constitutional law professors everywhere, the court twice cited John Hart Ely, the progenitor of the argument that judicial intervention is most necessary (and most appropriate in a democracy) when there has been a malfunction of the political process. Gerrymandering, of course, is the quintessential political malfunction.
Fourth, the court relied heavily on all of the evidence that was more abundant in this case than in Whitford. As I previously noted, this evidence included (1) several smoking-gun declarations of discriminatory intent; (2) data about three separate measures of partisan asymmetry: the efficiency gap, partisan bias, and the mean-median difference; (3) maps showing exactly how clusters of Democratic voters were either cracked or packed; and (4) computer simulations comparing the enacted plan to thousands of hypothetical maps. Thanks to this evidence, this case was far from a Whitford rerun. Also thanks to this evidence, it’s hard to imagine a more egregious gerrymander. The authors of the North Carolina plan gleefully boasted of their partisan motives, achieved some of the worst partisan asymmetries of the last half-century, and ensured that their handiwork would be immune to all but the biggest wave—all in a state whose political geography, according to the computer simulations, mildly favors Democrats.
This ruling, which was issued by a three-judge District Court panel of Judges consisting of judges appointed by Jimmy Carter, George W. Bush, and Barack Obama, is the latest development in growing legal scrutiny directed at gerrymandering motivated by partisan bias rather than racial bias or animus. In one of the first actions of the October 2017 Term, the Supreme Court heard oral argument in a case arising out of redistricting in Wisconsin that the Plaintiffs contend was improperly biased toward Republicans. As I noted at the time, the Court seemed to be split on the issue of whether or not political gerrymandering amounted to a Constitutional violation and, if it does, how a Court is supposed to determine when redistricting crosses the line from the permissible to something that is barred by the Constitution because it provides too much of a benefit to one political party or the other. In the Wisconsin case, the Plaintiffs alleged that the district lines that were drawn by the Republican-controlled legislature unfairly benefited the Republican Party in a measurable way, and relied on a mathematical formula developed by statisticians to support its argument. Last month, the Supreme Court also accepted a second case dealing with partisan gerrymandering for review. This case comes out of Maryland and was brought by Republicans who argued that the Democratic-controlled legislature improperly redrew the state’s Congressional Districts to dilute the voting power of Republicans in western Maryland. As with the cases currently pending before the Supreme Court, this case can be automatically appealed to the Supreme Court rather than having to go through the Circuit Court of Appeals as is normally the case. North Carolina’s Attorney General has already made clear that he intends to pursue that appeal, so it’s possible that this case could join the Wisconsin and Maryland cases and form the basis for a wide-ranging opinion by the Supreme Court on this issue that could have a significant impact as we head into the 2020 census and the redistricting that will follow.
As I noted in my post when the Supreme Court accepted the Wisconsin case for review, and again in October when the Court heard oral argument, skeptical of the argument that partisan gerrymandering is per se unconstitutional. Under the Constitution, the states have broad authority when it comes to drawing the lines for Congressional and state legislative districts. The only limits that have been placed on that authority have come pursuant to the Fourteenth and Fifteenth Amendments, the Voting Rights Act, and the Supreme Court’s decision in Baker v. Carr and its progeny. In that case, the Court ruled that Courts did indeed have the authority to consider challenges to the composition of state legislative districts and it opened up an entirely new area of legal challenges to the practice of drawing district lines. At the same time, though, the Court did not say in that case that drawing districts based on politics was per se wrong. Additionally, it’s worth noting that drawing district lines based on political considerations is hardly a new thing. The very name “Gerrymandering” comes from Elbridge Gerry, who signed both the Declaration of Independence and the Articles of Confederation and who was among the leading Anti-Federalists opposed to ratification of the Constitution. He also served as Vice-President under James Madison and as Governor of Massachusetts. It was during his time as Governor that the redistricting that came to bear his name occurred. While it was politically controversial at the time, there was never a serious legal argument from any of Founding Fathers who were alive at the time that what the state legislature had done in that case was or should be unconstitutional.
That being said, there is certainly a strong policy argument for the idea that partisanship should not play as decisive a role in redistricting as it does today, many of which have been raised here at Outside the Beltway by Steven Taylor. (See here, here, and here, for example.) Additionally, The Washington Post’s Amber Phillips points out that this potential judicial assault on partisan gerrymandering could post problems for Republicans in that their control of state legislatures has until now allowed them to draw districts that both protect Republican members of Congress and ensure that they continue to have advantages at the state level that could allow them to further cement Republican control in the wake of the 2020 census. In addition, it is clear that redistricting that protects one political party, or which seeks to protect incumbents of both parties such as was the case in Virginia after the 2010 census, helps contributed to the political polarization that makes it difficult for Congress to function since it favors candidates who appeal to the most extreme and activist factions of their party rather than the population as a whole. Because of this, Members of Congress become less subject to being influenced by their party leadership on even routine matters like budget votes or raising the debt ceiling, both of which have led to actual and threatened government shutdowns and had a significant negative impact on financial markets. That being said, I am loathed to see the Courts put their thumb on the scale with regard to an issue that the Constitution clearly seems to leave to the political process. These are some of the concerns that Justices raised during oral argument in the Wisconsin case in October. We’ll have to wait to see just how they decide to deal with those concerns.
Here’s the Court’s opinion: