The stakes in Rucho v. Common Cause, the North Carolina partisan gerrymandering case currently being considered by the Supreme Court, just got higher. The high court stayed lower court decisions against legislatures in Michigan and Ohio for gerrymandering pending a decision in Rucho, meaning that the court expects those cases, along with a Maryland case that was argued along with Rucho, to be bound by the result of Rucho. The importance of the case can also be seen in the number of briefs filed with the court on the case from outside parties.
Standing by something already decided
While advocates, scholars, and journalists have tried to read the mindset of justices based on interpreting what they said during the case’s oral arguments, the consensus seems to be that all four of the liberals want the court to uphold the lower court decision against the North Carolina General Assembly, while most of the conservatives opposite it. The question marks seem to be on Chief Justice John Roberts and shiny new Justice Brett Kavanaugh, both of whom seemed to favor arguments from both the plaintiffs and defendants.
Both sides did twists and flips to try to make previous cases relevant to Rucho, but there is one case that sets a clear precedent for Rucho v. Common Cause. In Davis v. Bandemer (1986) the court ruled 7-2 that partisan gerrymandering was not a violation of the Equal Protection Clause of the 14th Amendment. Writing for the majority, Justice Byron R. White laid out their rational clearly:
The mere fact that an apportionment scheme makes it more difficult for a particular group in a particular district to elect representatives of its choice does not render that scheme unconstitutional. A group’s electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause.
There are two components of those few sentences that directly bare on the plaintiffs’ case in Rucho v. Common cause:
- Having people you oppose being elected in the district where you live does not make that district unconstitutional. Democrats in North Carolina and Republicans in Maryland are not systematically excluded from the political process.
- Proportional representation is not an applicable standard for determining impermissible discrimination. No matter how you may personally feel about arguments along the lines of “party X won 51 percent of the (cumulative) vote, but got 70 percent of the seats in the legislature,” it is not constitutionally valid way of assessing legislative districts. (It also ignores political geography.)
The court also noted that the Equal Protection Clause applies for racial gerrymandering in a way that it does not for partisan gerrymandering.
With friends of the court like these…
The numerous amici curiae (friend of the court) briefs fell along predictable lines (Scroll down for a listing of briefs), with Republicans, conservatives, and legislatures supporting Rucho and Democrats, liberals, and academics backing Common Cause. One such brief that broke the typical pattern was from two Republican governors: former California Gov. Arnold Schwarzenegger and current Maryland Gov. Larry Joseph Hogan Jr. Hogan’s interest in the case is clear; the court heard Lamone v. Benisek, a suit alleging Democratic gerrymander in Maryland, in tandem with Rucho v. Common Cause. Schwarzenegger’s part in the brief included his touting the “independent” redistricting commission in California. However, California’s commission is an example of redistricting done wrong, with advocacy groups infiltrating a supposedly nonpartisan process to favor Democrats.
Amici curiae briefs are briefs filed by people who are not parties to the case. There is evidence that such briefs can influence courts, providing a means for interest groups to influence judicial branches of government. Most of the briefs filed in this case sided with the plaintiffs. However, the weight of precedent sides with the defendants and the Supreme Court likely will rule in favor of Rucho.
If the court rules in favor of the plaintiffs, here is an idea of what the resulting maps might look like.