Messy Issue of Gerrymandering About to Dominate High Court Docket

March 15, 2019 by Dan McCue

Over the next two weeks, the docket of the U.S. Supreme Court will be dominated by issues it has recently preferred to punt back to lower courts: racial and partisan gerrymandering.

On Monday, the justices will hear oral arguments in a case accusing the Virginia House of Delegates of creatively redrawing legislative district lines to disadvantage minority voters.

Then on Tuesday, March 26, the justices will wade into two of the highest-profile cases of the term –one out of North Carolina, the other from Maryland — that revolve around accusations that state officials engaged in partisan gerrymandering, drawing maps to favor one political party at the expense of another.

The arguments come at a time of heightened attention around the issue of gerrymandering, which has already had an impact on the 2020 race for the White House.

In March, former Attorney General Eric Holder announced he’d decided not to run for president and would instead devote his time and energy to the National Democratic Redistricting Committee and its affiliates.

In numerous interviews before and after his announcement, Holder said he believes it critical to focus on winning state races now so that when the next district maps are drawn, Democrats can have more say in states that have been in Republican hands since before the last maps were created.

“We’re focused on local elections all over the country so we can win back power at the state level. Redistricting is two years away — which means the next decade is on the ballot,” said Holder to NPR’s Steve Inskeep.

“What we want to do is have in 2021 a fair process by which people will draw lines that will include Republicans and Democrats who are truly going to represent the people,” he added.

Of course, the Democrats are not alone in paying greater attention to legislative district map making processes.

In 2017, members of the GOP started an organization called the National Republican Redistricting Trust for the express purpose of fighting more Democratic-drawn maps in court.

It also aims to serve as a central hub of sorts for Republicans who want to influence congressional and state legislative boundaries after the next census.

While interest in where and how district lines are drawn is understandable, there’s now ample evidence that the desire for more fairness in the process has caught on with the voting public.

In all five states that held a referendum on creating an independent redistricting commission in 2018 — Michigan, Colorado, Utah, Missouri, and Ohio — the ballot measure won overwhelmingly.

“The problem is there are a number of states that don’t allow for such ballot measures, where the legislatures simply refuse to relinquish control,” said Corey Goldstone, spokesman for the Campaign Legal Center. “In those states, unfortunately, litigation remains the only option.”

Race, Diluting the Vote, Central Issues in Virginia

The events underlying the Virginia case coming before the High Court date back to 2011, when the General Assembly rewrote the district map for the state’s House of Delegates based on data from the 2010 census.

The final map adopted by the House of Delegates and approved by the governor included 12 districts in which the majority of voters were black. But several residents of those districts objected and went to court to keep the map from being used.

They argued that blacks had been illegally packed into the districts to dilute their voting strength in other areas. The result, they said, was that a majority of the districts incorporated into the map favored Republicans.

A federal judge disagreed and upheld the map’s new district, triggering an automatic appeal to the Supreme Court.

In 2017, the Supreme Court found that the district court had applied the wrong legal standard to the district resident’s claims.

The justices agreed one of the 12 districts did not violate the Constitution, but sent the case back to the lower court to make a determination on the others, using the correct legal standard.

On review, U.S. District Judge Barbara Keenan concluded race had been the main consideration used to draw each of the 11 remaining districts.

“The evidence shows that these race-based decisions dwarfed any independent consideration of traditional redistricting criteria,” she wrote. “A court could conclude that the legislature relied on race in substantial disregard of customary and traditional districting practices.”

“Using race in the service of a legitimate goal does not alter the underlying fact that the legislature has selected voters for inclusion in a district based on race,” she added.

The House of Delegates appealed, setting the stage for Monday’s arguments before the Supreme Court. Before they get to the merits of the case, however, the justices will have to decide who has legal standing to represent the state.

The House of Delegates, which has been a party to the litigation all along, believes ts lawyers should argue the case. But Virginia Solicitor General Toby Heytens contend that under state law, Virginia’s attorney general is responsible for representing the state.

A Question of Partisanship

In some ways the second round of gerrymandering cases that will come before the court are even more interesting.

When the justices assemble on March 26th, they will review the rulings of two lower courts that found congressional maps in North Carolina and Maryland were crafted in such a partisan fashion that they violated the rights of voters.

The day’s proceedings will also have something of a bipartisan cast to them, since the North Carolina map was drawn by Republicans, while the Maryland map was drawn by Democrats.

The case is also noteworthy because the justices have never found a state’s electoral district map so partisan as to violate the Constitution.

If they ultimately do strike down both maps on those grounds, it could lead to dramatic changes into how legislative district maps are drawn across the United States, the Campaign Legal Center’s Goldstone said.

“That decision would set the precedent for every federal court in the nation,” he said. “It would also establish clear guidelines for how these maps are to be drawn in the future.”

Paul Smith, vice president of the Campaign Legal Center, is the counsel of record in the North Carolina case, representing the League of Women Voters of North Carolina alongside the Southern Coalition for Social Justice as well as individual voters.

As with the racial gerrymandering case out of Virginia, the Supreme Court had an earlier opportunity to decide the Maryland case, but sent it, and another case, out of Wisconsin, back to their respective lower courts on technical grounds after holding initial oral arguments.

During those arguments, the justices appeared to be divided on how to proceed. The conservatives on the court expressed reservations about getting involved in what they saw primarily as a political dispute.

But the court’s more liberal justices disagreed, suggesting the issue is ripe for review and that issue isn’t about party, but rather safeguarding the will of the voter.

In November, a unanimous three-judge panel found that Democrats had unconstitutionally targeted Republican voters in Maryland’s 6th Congressional District because of their political affiliation.

The ruling was premised on the legislature’s decision to redraw the district, which previously stretched across the top of the state, to extend down into Democratic strongholds in the Washington suburbs.

Writing for the panel, U.S. Circuit Judge Paul Niemeyer noted that “in creating the map, the State, on net, removed roughly 66,000 registered Republicans from the Sixth District and added some 24,000 registered Democrats … bringing about the single greatest alteration of voter makeup in any district in the nation following the 2010 census.”

“To be sure, citizens have no constitutional right to be assigned to a district that is likely to elect a representative that shares their views,” he continued. “But they do have a right under the First Amendment not to have the value of their vote diminished because of the political views they have expressed through their party affiliation and voting history.”

One major factor has changed since the court last discussed the Maryland case — Justice Anthony Kennedy has been replaced by Justice Brett Kavanaugh, whose opinion is entirely unknown as he’s never ruled on gerrymandering in the past.

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