Supreme Court Gerrymandering Ruling Opens Door To Potential Redistricting Problem
Civil Rights Policy Brief #184 | By: Rodney A. Maggay | March 11, 2022
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Policy Summary
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On November 4, 2021 in North Carolina the state legislature adopted a congressional map which gave the Republican Party in the state a huge advantage – it seemed likely that Republicans would win ten of the fourteen available congressional seats in the state despite total votes cast in state elections being evenly split between Republicans and Democrats. The Princeton Gerrymandering Project graded the map an “F” because of its extreme partisan bias in drawing the map. North Carolina voters challenged the map in court and the North Carolina Supreme Court invalidated the map and directed a state trial court to lead the efforts to create a new state map. Experts were brought in and a new map was drawn which was upheld by the North Carolina Supreme Court. State Republican legislators appealed to the U.S. Supreme Court and requested that the original map drawn by the state legislature be used instead of the map approved by the state trial court.
In Pennsylvania, a similar situation developed due to the drawing of the state congressional map. Because of the 2020 Census, Pennsylvania lost a congressional seat and had to draw a map with seventeen congressional districts in the state. The Republican led legislature drew a map that had nine likely Democratic districts and eight likely Republican districts. However, even with that one seat advantage the Democratic Governor vetoed the plan. A group of Pennsylvania voters brought a lawsuit that urged the adoption of a second map, known as the “Carter Plan,” which would add one more Democratic leaning district and merge two Republican leaning districts into one district.
The Pennsylvania Supreme Court later intervened and directed a state trial court to submit a report for a redistricting plan. The trial court recommended the original map drawn by the state legislature. However, the state supreme court ignored the recommendation and adopted the “Carter Plan.” This time, a candidate for a congressional district, brought another lawsuit because he claimed there was no certainty as to what map will be used and which district he will represent and so he did not know how to proceed with his campaign. After being denied at the trial court level, an appeal was made to the U.S. Supreme Court.
On March 7, 2022 the U.S. Supreme Court in Toth v. Chapman and Moore v. Harper issued orders denying a writ of injunction and application for a stay of the Pennsylvania and North Carolina cases. Since the orders issued by the Supreme Court were only about rejecting the petition to temporarily suspend the use of the new maps in each state the Supreme Court did not actually rule on the legal arguments put forth by the petitioners. The dissents issued in the case only hinted at what might be forthcoming in a future gerrymandering case. Nevertheless, this move effectively rejected for the time being Republican requests to use the congressional maps that they had preferred for the 2022 election. LEARN MORE, LEARN MORE
Policy Analysis
The move taken by the U.S. Supreme Court in the North Carolina and Pennsylvania gerrymandering cases was a rebuke to Republican efforts at gerrymandering maps in key swing states. But the orders generated alot of discussion because of dissents written by Justices Samuel Alito and Brett Kavanaugh that focused on a unique legal theory that could have far reaching consequences in the future.
When the plaintiffs in North Carolina and Pennsylvania brought their appeal to the U.S. Supreme Court they argued their position because of the word “legislature” in the U.S. Constitution’s Elections Clause. Article I, Section 4 provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A strict reading of this clause would probably only permit the state legislature of each state to decide on how a map of congressional districts in the state should be drawn and how a final map would look. Because of this unique position of only having a state legislature – and no one else – decide on how congressional districts would be drawn the plaintiffs in each of these cases are looking to exclude other participants such as the Governor and the state trial courts (and by extension, state independent redistricting commissions) from having a say in how maps are drawn.
This is a very dangerous road to go down because it will result in state legislators drawing and manipulating state and congressional district maps without being accountable to anyone. The process of having only the state legislature draw a new state map had gotten so bad that a number of states decided on creating state independent redistricting commissions to do the job in order to leave state politicians out of it.
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The intent was to reduce the amount of partisan bias that would go into drawing a state map because politicians had an incentive to draw a map that would ensure their continued re-election and keep their preferred political party in power even if the populace might have preferred the other political party. If the plaintiffs have their way with their legal argument, all of the changes and safeguards that have been implemented through the years would be discarded and it would be back to square one where only the state legislatures again would be responsible for drawing the state map. There would be no limitations on the kind of gerrymandering that a state legislature could do.
The Supreme Court should be wary about going down this road. Instead of reading words narrowly and giving words a strict interpretation without looking at what unintended consequences might occur, the Court should look at the progress that has been made in making redistricting more transparent.
However, Justice Alito and his conservative colleagues have signaled in their unneccessary dissent (known as the “shadow docket” when orders and/or dissents are issued that lack the full briefing and oral arguments that a usual case would receive) that they would be open to this line of thinking in future gerrymandering cases. LEARN MORE, LEARN MORE, LEARN MORE
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Engagement Resources
Click or tap on resource URL to visit links where available
National Conference of State Legislatures (NCSL) – Redistricting Commissions – info page on how state independent redistricting commissions are comprised by states that use them.
Campaign Legal Center – info page from non – profit group fighting gerrymandering.
Brennan Center for Justice – info page on what gerrymandering is and the problems it creates.