When it comes to gerrymandering, there simply must be a limit

By: - February 8, 2022 6:00 am

Last week, the North Carolina Supreme Court struck down as unconstitutional the most recent batch of egregiously gerrymandered legislative and congressional maps fashioned by Republican majorities at the General Assembly.

It should not have been necessary.

Thirteen years ago this month, Republican senators introduced a bill that would have easily prevented the necessity of such a controversial ruling. Filed on Feb. 2, 2009, by a group that included current Senate President Pro Tem Phil Berger, Senate Bill 25 would have asked North Carolina voters to approve the establishment of an independent redistricting commission.

It seems all but certain that voters would have said “yes” had the measure made it to the ballot.

Unfortunately, Democrats who then ran both houses of the General Assembly, could not get their act together to take up the legislation and they have been regretting that decision ever since. After the GOP swept to power in the 2010 wave election, it seized control of the map drawing process and has clung tenaciously and hypocritically to it ever since.

Of course, 2009 wasn’t the last chance to derail partisan gerrymandering in North Carolina. Not only have several bills similar to the 2009 commission proposal been introduced on Jones Street in the years since, but in 2019, the U.S. Supreme Court had the chance to strike down partisan gerrymandering as unconstitutional in Rucho v. Common Cause – a case challenging another set of gerrymandered maps in our state.

Unfortunately, the Court’s five Republican justices declined to do so. As Chief Justice John Roberts wrote for the majority, extreme partisan gerrymandering is “incompatible with democratic principles,” but that “does not mean that the solution lies with the federal judiciary.” Essentially, Roberts argued, regulating the redistricting process is just too complex and difficult for the federal courts (this, despite the fact that many had already done so with great aplomb) and so it must be left to the individual states and the systems each has put in place.

In some states – especially those whose constitutions were silent on such matters, and that lack the possibility of citizen-sponsored ballot initiatives – critics of gerrymandering were left with few options after the Rucho ruling. If they couldn’t convince legislators to voluntarily give up their power, they were basically out of luck.

Fortunately, some states suffering under gerrymandered maps retained options. In Michigan, citizens were able to place an amendment on the statewide ballot to create an independent commission. It passed by an overwhelming majority.

Similarly and thankfully, in North Carolina the state constitution includes clauses – on free elections, equal protection, free speech, and freedom of assembly – that provided gerrymandering opponents with grounds to pursue state court litigation. And that’s how we got to the place we are today.

Using those provisions as the basis of their ruling, a four-person majority of the state Supreme Court ruled that when it comes to gerrymandering, there simply must be a limit to how far map drawers can go. As the majority put it with simple and eminent logic, the extreme gerrymanders designed by GOP lawmakers unconstitutionally infringe on the fundamental right to vote by systematically making it “harder for one group of voters to elect a governing majority than another group of voters of equal size.”

Sadly, if not surprisingly, the three Republican justices on the court dissented. Led by Chief Justice Paul Newby, the trio argued that the state constitution delegates the matter of redistricting to the legislature and that, therefore, their colleagues were exceeding the court’s authority by striking down the maps.

Chief Justice Paul Newby

But, of course, the constitution delegates a host of issues to the legislature – tax policy, public education, criminal law – over which it has long been established that the courts must have the final say when it comes to conflicts with core constitutional rights.

More to the point, if one follows the dissent’s argument to its remarkably illogical conclusion, there is presumably no map the legislature could draw that would run afoul of the constitution. Modern digital technology is an amazing thing. What if lawmakers could somehow concoct maps that guaranteed Republicans 12 out of 14 U.S. House seats, or 150 out of 170 General Assembly seats? Would that be beyond the court’s purview to assess?

To argue, as Newby did, that the solution for disenfranchised voters is simply to vote the gerrymandering rascals out of office is a Catch-22 notion as preposterous and disturbing as the Republican maps themselves.

Earth to the chief justice: That’s the whole point here. When legislators rig maps to guarantee they retain power, it is the height of illogic to suggest that voters can simply overcome it through sheer force of will – especially in 2022 when maps can be drawn with such surgical precision using only a few computer keystrokes. No wonder editorials have described the chief’s argument as “ludicrous” and “contorted.”

The bottom line: The gerrymandering wars are far from over. As veteran redistricting chronicler David Daley has observed, Republicans are playing a long and ruthless game here. But for now in North Carolina, at least, the constitution and common sense have prevailed.

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Rob Schofield
Rob Schofield

Editor Rob Schofield oversees day-to-day newsroom operations, authors regular commentaries, and hosts a weekly radio show/podcast.