- If the Supreme Court upholds a lower court ruling in Rucho v. Common Cause, it would overturn precedent, which maintains that partisan gerrymandering is a “nonjusticiable political question.”
- A study of congressional district maps related to the case indicates that districts drawn without considering partisanship would likely not create the results plaintiffs are seeking.
The U.S. Supreme Court will soon hear a case that could overturn decades of precedent and throw North Carolina into turmoil ahead of the 2020 elections. The high court is scheduled to hear oral arguments for Rucho v. Common Cause on March 26.
The district court ruling
The majority of a three-judge panel of the U.S. District Court for The Middle District of North Carolina ruled last July that North Carolina’s current congressional districts unduly favored Republicans and… (page 7):
…deprived Democratic voters “of their natural political strength” by making it difficult for such voters to raise money, attract strong candidates, and motivate fellow party members and independent voters to campaign and vote.
Neither side denied that partisanship was a factor in drawing the maps. In fact, the plaintiffs specifically used partisanship in the alternative map they presented to the district court, which was based on a criterion, among others, of imposing a 7-6 split in North Carolina’s congressional delegation (see maps below). The question is whether partisan considerations should be prohibited in the districting process. On that question, District Judge William Lindsay Osteen Jr., disagreed with the majority (page 310):
This question has been addressed at length in a number of cases, and I agree with those cases recognizing the fact that political consideration and partisan advantage are not prohibited by the Constitution.
However, Osteen concurred with other parts of the ruling, suggesting that partisan considerations may be legal but that they cannot be an overwhelming consideration.
If the Supreme Court upholds the lower court’s decision, it would overturn Davis v. Bandemer in which the court held that “[P]olitical gerrymandering claims present a nonjusticiable political question,” meaning that it is a question that is better handled by elected officials than federal judges.
A tale of three maps
To better understand the case, it may be useful to compare three maps.
The first is of the congressional district map currently being used by North Carolina. It was drawn in 2016 in response to Cooper v. Harris, which held that the previous maps included racial gerrymanders not required by the Voting Rights Act. Among the criteria Republicans in the General Assembly used for the 2016 map was partisanship.
The result was a map that tended towards a 10-3 split in North Carolina’s congressional delegation in favor of Republicans. It is this map that is the subject of Rucho v. Common Cause.
One of the expert witnesses used by the plaintiffs in that case is Jowei Chen, a political scientist at the University of Michigan, who produced thousands of NC congressional maps based on various criteria. The court became enamored with Chen’s “Plan 2-297.” That map is based in part on imposing a 7-6 proportional representation split in North Carolina’s congressional delegation.
Source: Evidence presented by Jowei Chen in Rucho v. Common Cause
Chen’s maps would never be used as the basis for districting in North Carolina, if for no other reason than what it does to the 2nd and 12th Congressional districts (10 and 3 on Chen’s map); both would consist entirely of two split counties. Although there is not a requirement for congressional districts to keep to county lines, it is a signal of respect for communities of interests. One of the criteria for Chen’s maps is that it split fewer counties (12) than did the 2016 plan (13). However, the map helped convince the district court that the legislature can and should draw maps more favorable to Democrats than the ones currently in place.
If the Supreme Court upholds the district court’s ruling in Rucho v. Common Cause, the General Assembly would have to draw a new set of congressional maps for the 2020 election. Assuming that the high court does not impose a predetermined partisan split on the legislature, what would they look like? Among several possible maps produced by the statistical analysis website FiveThirtyEight was a map based on just two criteria: compactness and minimizing split counties.
The result would split the difference between the current map and Chen’s map, creating a map with a likely 8-5 split in favor of Republicans. This map might have to be altered to comply with the Voting Rights Act, perhaps by adding more African-Americans to the First District (the purple district in the map above).
If the Supreme Court upholds the district court ruling in Rucho vs. Common Cause, the General Assembly would have to draw districts for the 2020 election without regard to partisanship. However, unless the court imposes some kind of proportional representation standard, such a nonpartisan process would likely not result in as big a shift in North Carolina’s congressional delegation as Democrats hope and Republicans fear.