North Carolina candidates breathed a sigh of relief yesterday — well, at least some of them — when the Supreme Court blocked a lower-court order for the state to redraw its congressional districts. An appellate court had ruled in favor of a district court finding that the current map constituted an unconstitutional partisan gerrymander, an issue which the top court already has on its docket:
The Supreme Court on Thursday evening said that North Carolina does not have to redraw its congressional map by the end of January, as a lower court had instructed it to do earlier this month.
The high court’s order granting a stay of the lower court’s decision, pending the disposition of the state’s appeal, likely means the existing congressional map will be in place for the 2018 midterms.
With the candidate filing deadline coming up on Feb. 28 and primaries on May 8, the court’s decision likely averts what could have been a confusing few months about where candidates were running in 2018.
In its emergency application, North Carolina lawmakers argued that the court-mandated redraw would “hopelessly disrupt North Carolina’s upcoming congressional elections.”
The disruption could have been part of the court’s concern, especially given the lack of time left in which to completely redraw all of the state’s districts. However, a more pressing issue is whether courts have any role at all in dictating partisan outcomes from redistricting, as opposed to issues over race and ethnicity. That is at the heart of a case on this session’s Supreme Court docket, Gill v Whitford, involving the redistricting in Wisconsin after the 2010 census. (There is also a second case, Rucho v Common Cause in Maryland, in which a lower court refused to intervene on the basis of partisan balance.) The Supreme Court most likely just decided to freeze everything in place until it could determine whether courts could impose a “fairness doctrine” on a partisan basis.
How exactly would court intervention in these cases work, though? Unlike race and ethnicity, partisan identification is neither immutable nor the subject of historical discrimination in voting rights. Republicans and Democrats get the same access to the ballot; in Wisconsin, that has lately yielded a Republican government which had the authority to perform the required redistricting in 2011. If that turns out to be unpopular, the proper remedy would be to elect Democrats to the state government in enough numbers to control the next redistricting process after the 2020 census.
The plaintiffs in Gill v Whitford want courts to start providing a calculus to determine what is “fair” when apportioning partisan precincts into various districts. John Ryder, co-chair of the Republican National Lawyers Association, argued that madness would result from courts arrogating that jurisdiction to the wrong branch of government:
The consequences of this proposition would be immense. First, it would require the court to settle on the correct formula. The plaintiffs in Gill v. Whitford argued for the “efficiency gap” before shifting to something called “political asymmetry.” It raises the possibility of endless litigation over the correct standard, with judges struggling to make sense of testimony from dueling mathematicians. In the end, it would require courts to determine the “appropriate” political balance in the state. Is that a job for unelected judges?
Second, such a standard would likely require bizarrely configured gerrymanders in order to achieve the judicially determined political balance. Americans have been sorting themselves into political enclaves for decades, as Bill Bishop documented in his 2008 book, “The Big Sort.” Mr. Bishop noted the increasing trend of counties to be carried by one party or the other by larger and larger margins. From 1976 to 2004, the proportion of Americans living in counties that were carried by landslide margins (20% or more) in presidential elections increased from 26% to 48%—even though 1976 and 2004 were close elections with similar popular-vote margins (2.1% and 2.4%, respectively). …
What this means for redistricting is Democrats tend to live in one part of a state, or a county, and Republicans in another. In Florida in 2000, Al Gore won 80% or more of the vote in some 800 precincts, while George W. Bush won 80% or more in about 80 precincts. When compact districts are drawn in the Democrat-leaning areas of Florida, they result in districts that vote 70% or 80% for the Democrat. If you draw natural, compact, contiguous districts, you will tend to have concentrated districts of one persuasion or the other. The only way to avoid that is to draw elongated districts that splinter communities and are gerrymandered to achieve a judicially determined political result.
This leads to the most pernicious effect of the argument. It changes the basis of representation from district-based to proportional. Instead of representing a community that is mostly compact and cohesive, the lawmaker would be selected according to a statewide partisan balance determined by the court. Such an approach can only heighten the already intense partisanship of contemporary politics.
And now for the fun question: does this stay reflect any decision yet made by the Supreme Court? Possibly; the court heard oral arguments on Gill v Whitford in October, and it’s not unreasonable to assume they have reached a decision, even if they have not yet published it. If they agreed that courts have jurisdiction over a purely political fight between the two main parties, why issue a stay in this case, which would neatly fit within those parameters? On the other hand, if they have agreed to shoot down the central claim in Gill v Whitford, then forcing the disruption in North Carolina would be pointless and destructive. However, a third possibility exists: the court hasn’t yet made up its collective mind, and as noted above, the timing of the lower court order made the 2018 election process impossible. In other words, don’t read too much into the stay.