The Gerrymandering Fight Heats UpBy and
Court cases over partisan gerrymandering may reshape districts
High court mulls whether voting maps can violate Constitution
It’s hard to fault Democrats for chafing when they look at North Carolina’s congressional election map.
Republicans drew the map so they would win 10 of the 13 House seats -- a goal they achieved in 2016 with just 53 percent of the overall vote. A state lawmaker who led the redistricting work said the 10-3 breakdown was created “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
Now a barrage of court cases may overturn the North Carolina map and partisan gerrymanders elsewhere. A Pennsylvania map is endangered in part because of a district that critics say resembles the cartoon character Goofy kicking Donald Duck.
Most notably, the Supreme Court could set a nationwide precedent if it rules this year that a Republican-drawn Wisconsin state legislative map is so politically skewed it violates the Constitution.
That would be a boon to Democrats in many parts of the country as they try to recapture Congress, though most effects wouldn’t be seen until 2020 or 2022. Most of the vulnerable maps, though hardly all, are created by Republicans, in part because the GOP’s success in state-level elections in 2010 gave it control of the decennial map-drawing process in much of the country. Democrats play the same games when they have the chance -- in places like Maryland and Illinois.
Those who want to rein in partisan gerrymandering say that drawing district lines to help one party encourages lawmakers to cater to the ideological extremes. Gerrymandering defenders say elections are affected by factors unrelated to redistricting, such as a clustering of Democrats in urban areas.
Some Supreme Court justices are wary about becoming the referee of these political disputes.
"We will have to decide in every case whether the Democrats win or the Republicans win," Chief Justice John Roberts said during arguments in October in the Wisconsin case.
Here’s is a state-by-state look at how the key fights might unfold:
The Wisconsin fight looms the largest, even though it involves a map for state elections, not federal ones. The Supreme Court’s ruling could "open the floodgates for cases in lots of states," said Gregory Wawro, a Columbia University professor who focuses on congressional elections and judicial politics.
Republicans drew the map after they took control of the Wisconsin legislature in 2010. Democrats say the lines were so partisan they all but ensured that Republicans would keep control of the legislature for the entire decade. A lower court agreed and ordered a re-do.
By all indications, the outcome will turn on the views of Justice Anthony Kennedy. In 2004, Kennedy suggested that some of the most extreme partisan gerrymanders might violate the Constitution’s First Amendment. But he said he hadn’t yet seen a manageable test to let courts decide when political considerations have gone too far.
The challengers to the Wisconsin map say they have come up with a workable standard that centers on the principle of "partisan symmetry" -- the idea that each party should win roughly the same number of seats given the same percentage of the overall vote.
Kennedy was in the majority in June when the Supreme Court lifted the lower court’s Nov. 1 deadline to draw a new Wisconsin map. During arguments in October, the swing justice was full of questions for both sides, creating more intrigue than certainty about the outcome.
The case is a "toss-up," said Joshua Douglas, who teaches election law at the University of Kentucky’s law school. "It is hard to say at this point whether any of the standards will satisfy Justice Kennedy."
Wisconsin Democrats want a new map in place for the state’s Aug. 14 primary. For now, that’s possible, but it might change if the court doesn’t rule until May or June.
The North Carolina clash offers Democrats the chance to pick up several House seats, though most likely not until 2020. Democrats say a fairer map would produce something closer to parity than the current 10-3 divide in the House delegation.
A three-judge panel struck down the Republican-drawn map, citing many of the arguments that are in front of the Supreme Court in the Wisconsin case.
The lower court ordered a quick re-drawing of the map in time for the May 8 primary, but the Supreme Court put the order on hold earlier this month. That means a resolution of the North Carolina fight will probably have to wait for a ruling in the Wisconsin case.
"Republicans could easily lose a couple seats if they have to redraw the districts in a less partisan way," said Stuart Rothenberg, a political analyst at Inside Elections.
Pennsylvania marks the best chance for Democrats to pick up congressional seats this November. As with North Carolina, Republicans drew lines that let them dominate the delegation in the closely divided state. Republicans took 54.1 percent of the congressional vote in 2016 and won 13 of 18 districts.
The Pennsylvania Supreme Court struck down the map this week, giving the Republican-controlled legislature until Feb. 9 to draw up a new plan for approval by the Democratic governor. Republicans asked the U.S. Supreme Court on Thursday to block the ruling.
The problem for Republicans is that the Pennsylvania court based its decision on the state constitution, not the federal one. That could insulate the ruling because even the U.S. Supreme Court can’t second-guess a state court’s interpretation of its own constitution.
The Supreme Court "is very careful not to disturb a judgment that rests on state rather than federal law," said Heather Gerken, an election-law specialist and dean of Yale Law School. The Republicans "have a tough row to hoe," she said.
Republicans would be especially vulnerable in what is now the 7th district outside Philadelphia, said Kyle Kondik, managing editor at Sabato’s Crystal Ball, a political forecasting unit at the University of Virginia. The sprawling district, which is the one likened to Goofy and Donald Duck, is currently held by Republican Patrick Meehan, who is retiring after reports that he settled a sexual harassment allegation.
"The Pennsylvania ruling is at the moment the most important one just for the 2018 election," Kondik said.
Things got more complicated at the Supreme Court in December when the justices said they will consider a second partisan gerrymandering case, from Maryland. The case involves a single congressional district, drawn by Democrats aiming to oust a Republican incumbent. Arguments are set for March 28.
The court’s decision to hear the case surprised many observers, and it suggests the justices might be looking for more options. One possibility is that the court is considering allowing partisan-gerrymandering lawsuits, but only on a district-by-district basis. That’s already the rule with lawsuits that allege racial gerrymandering.
"The Maryland case presents a somewhat narrower vehicle, allowing the court to use the First Amendment and say that a plaintiff has to challenge a specific district and not the state map as a whole," Douglas said. "That very well could be how this turns out."
Another possibility is that the justices could open partisan gerrymanders to court challenges by siding with Democrats in the Wisconsin case and Republicans in Maryland. That would give at least the superficial appearance that the court isn’t taking one political party’s side -- addressing, if not necessarily resolving, Roberts’s concerns.
Should a new map be ordered in Maryland, “you would probably expect Republicans could net an extra seat,” Kondik said.
Depending on how the high court rules, both parties could turn their attention to other gerrymandered states.
Republican-drawn lines in Michigan are already facing a lawsuit filed in December, and Democrats say Ohio is in their sights as well. Texas has also faced redistricting claims, though that fight has focused mostly on allegations of racial gerrymandering.
Republicans could target the congressional map in Illinois, where Democrats have spread out their own Chicago-area voters to capture as many seats as possible.
"This is a big, big deal," Rothenberg said. "This is a fundamental question about how we represent people and how we draw lines."