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Gerrymandering Critics Suffer Twin Blows at the Supreme Court

The Texas case involves racial gerrymandering, while the North Carolina case deals with partisan gerrymandering -- something the justices have hinted is unconstitutional but have yet to rule against.

Texas Redistricting
Texas state Sen. Juan "Chuy" Hinojosa looks at maps on display prior to a Senate Redistricting committee hearing in 2013.
(AP/Eric Gay)
Challenges against gerrymandering -- drawing political boundaries to give one party an advantage over another -- have suffered a series of recent setbacks at the hands of the U.S. Supreme Court.

After lower federal courts ruled repeatedly that Texas' congressional and legislative maps discriminated against black and Hispanic voters, the nation's highest court overturned those decisions on Monday, giving approval to all but one of the 11 districts that were challenged.

"It really is a very thin silver lining for the voting rights community," says Michael McDonald, a redistricting expert at the University of Florida.

Also on Monday, the court sent its third partisan gerrymandering case in two weeks -- this one from North Carolina -- back to lower courts for review. The other cases were from Maryland and Wisconsin.

Cases challenging gerrymanders on grounds of racial discrimination -- like the one in Texas -- have long been a staple at the Supreme Court. More recently, though, maps are being challenged on grounds that they constitute an unconstitutional partisan gerrymander, in effect disenfranchising voters because of the party they support. The Supreme Court has hinted in past rulings that partisan gerrymandering could violate the U.S. Constitution, but it has yet to find a case that meets, or in fact would help set, its criteria for what that means.

"This is as extreme as partisan gerrymandering gets," says Bob Phillips, executive director of Common Cause in North Carolina, which was one of the groups that challenged the state's map. "If this case is not the limit, then there may be no limit."

In the Wisconsin case, the court ruled that individuals could only challenge the districts they live in -- not the statewide map as a whole. Plaintiffs in the North Carolina case included residents of every district, as well as the Democratic Party, which presumably would have statewide standing. But justices nevertheless referred the case back to a lower court.

"Voting rights advocates argued that the North Carolina case didn't present the same concerns about standing as the Wisconsin and Maryland cases, but I guess the court thought otherwise," says Billy Corriher, a senior researcher at the Institute for Southern Studies in Durham, N.C.

The Supreme Court, in vacating a lower court's ruling from January that found North Carolina's congressional map was an unconstitutional partisan gerrymander, sent the case back for review without commenting on its merits.

North Carolina legislators had argued that pressing for partisan advantage was a norm in redistricting.

“The Supreme Court has affirmed multiple times this term that the political left’s litigation strategy, led largely by Barack Obama and Eric Holder, to load up our courts with pointless lawsuits has only put the political system into unnecessary unpredictability and confusion, costing millions of dollars, and all because Democrats can’t run good candidates with good visions and win at the ballot box," says Matt Walter, president of the Republican State Leadership Committee, which has been highly critical of challenges to partisan gerrymandering.

It's not yet clear what path the North Carolina case will take.

Even if the case quickly makes its way back to the Supreme Court and the court agrees to hear it this fall, new maps would not be drawn in time for this year's elections. The best plaintiffs can hope for is a win in time for the 2020 election -- which would be the last one held before the next round of redistricting.


The Texas Ruling

In 2011, the Texas Legislature approved maps that were quickly and successfully challenged in court as racially discriminatory. During the 2013 session, the legislature approved maps that had been drawn by a district court. Those were meant to be a temporary fix, but the legislature adopted them more or less wholesale. 

Plaintiffs challenging the maps, which included the Democratic Party and minority advocacy groups, failed to prove that the legislature had "acted with discriminatory intent" when it adopted the district court's map, Justice Samuel Alito wrote for the 5-4 majority.

"Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the state," Alito wrote. "The 2013 legislature was not obligated to show that it had 'cured' the unlawful intent that the court attributed to the 2011 legislature."

Plaintiffs argued that the maps were tainted by the state's long history of discriminating against racial minorities and because the district court's maps relied on the outlawed 2011 maps as a framework.

"The court today does great damage to that right of equal opportunity," Justice Sonia Sotomayor wrote in dissent. "Not because it denies the existence of that right, but because it refuses its enforcement."

The majority of the justices did agree that the legislature had violated Section 2 of the Voting Rights Act, which states violate when they give "less opportunity" for racial minorities to elect representatives of their own choosing. In one of the 11 challenged districts, the Supreme Court ruled that the legislature used race unconstitutionally as a predominant factor in altering a state House district in Fort Worth.

"Section 2 of the Voting Rights Act is still alive," says McDonald, the Florida political scientist. "It may be on life support, but it's still alive."

Texas Gov. Greg Abbott and other Republican officials in Texas hailed the ruling.

"This is a huge win for the Constitution, Texas and the democratic process," Attorney General Ken Paxton said in a statement. "Once again, Texans have the power to govern themselves."

Unsurprisingly, Democrats criticized the decision. Gilbert Hinojosa, the state party chair, said that the maps were "the result of a vile scheme to silence people of color and Democrats at the ballot box."

Having had little luck with the Supreme Court, critics of gerrymandering are taking their case directly to voters.

Ohio voters approved a measure in May that will turn redistricting over to an independent commission if the legislature fails to adopt maps that win broad bipartisan support. Proposals to create independent redistricting commissions either have already qualified or could be on the ballot in several states this fall, including Arkansas, Colorado, Michigan and Utah.

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Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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