Is extreme partisan gerrymandering unconstitutional? That’s the question a three-judge State Court panel of the North Carolina Superior Court answered this week with a firm “NO.” And they took 260 pages to do it. I know, because I read every one of them so you wouldn’t have to.
As I write this, two voting rights bills are ricocheting around congress looking for homes. They are the John Lewis Voting Rights Advancement Act (VRAA) and the Freedom To Vote Act.
In 2013, the Supreme Court struck down a provision of the Voting Rights Act of 1965 that required states with a history of voting rights abuses to get Department of Justice approval for changes they wished to make to their voting rules. The Court said Congress should come up with a new formula for doing that, and that is what the VRAA tries to do. The VRAA:
- Modernizes the Voting Rights Act of 1965’s formula determining which states and localities have a pattern of discrimination;
- Ensures last-minute voting changes do not adversely affect voters by requiring officials to publicly announce all voting changes at least 180 days before an election; and
- Expands the government’s authority to send federal observers to any jurisdiction where there may be a substantial risk of discrimination at the polls on Election Day or during an early voting period.
The other bill, the Freedom To Vote Act, is specifically aimed at combating voter suppression and voter subversion. One of its provisions would ban partisan gerrymandering. Which gets us back to North Carolina.
The State Court’s lengthy decision:
- Summarized the procedural history. A key point is state voting maps are drawn up by the state legislature every ten years to reflect decennial census data. The Court takes the time to describe how the Party in power at that time always wants to stay in power (what a surprise) and historically has taken steps to do that. It describes how from 2000 to 2010, when Democrats were in power, Republicans offered legislation every year to create an independent commission to set the maps, rather than the legislature. All the bills failed. From 2010 to 2020, when Republicans held power (they still do), Democrats offered the same legislation every year to create the same independent commission. Amazingly, those bills failed, too. The State Court concluded the legislature demonstrated that drawing the maps would be a legislative function, i.e., political, rather than a judicial function.
- Described how the currently enacted maps were drawn. The Republican controlled legislature established four rooms in the State House, each with encrypted computers where the maps would be created. The map drawing was transparent to both legislators and the public. The process took four months, after which the maps were debated and passed into law. Democrats made many challenges, all of which were defeated. The vote to approve the maps was strictly party-line.
- Analyzed the extreme partisan gerrymandering claims brought by the plaintiffs. A series of experts, having designed a number of mathematical models, testified persuasively that every one of the 120 state voting districts and every one of the 14 congressional districts were intentionally created with extreme partisan gerrymandering. The Court devoted 158 pages of its decision to these claims, and in every case found for the plaintiffs. The Court said clearly that the plaintiffs were right. All the districts were the result of extreme partisan gerrymandering, which would guarantee Democrats would never win more than four of North Carolina’s 14 Congressional seats.
- Denied the claims of Plaintiffs and ruled in favor of the Republican defendants. In describing North Carolina’s history of partisan gerrymandering, going all the way back to 1665 to do it, the three-judge panel (all Republicans) ruled that because the decennial map drawing had been amply demonstrated to be a political process, rather than judicial, and even though the Court might believe the process to be “repugnant,” over decades the history had shown this was the way both parties wanted it, and, therefore, it reflected the will of the electorate. The court ruled extremely partisan maps are “permissible,” and that no one had been able to prove at what point they became impermissible.
Gerrymandering has been with us since 1812, when Elbridge Gerry, Governor of Massachusetts, drew the long and thin salamander-looking state senate district in Massachusetts. Both parties relish it, except when they’re not in power. Then, it’s “Let’s create an independent commission to do it the right way!”
Banning partisan gerrymandering is only one of the 24 provisions in the Freedom To Vote Act. But I think North Carolina has demonstrated it’s complicated. As are the other 23 provisions. If you peel the onion all the way down, it’s hard to pretend the current political battle isn’t a fight about states’ rights. Do we have a unified, federally designed system to insure free and fair elections in every state, or is it every state for itself? Is there any room for compromise on these bills?
This question has been with America since its founding. For example, on this date in 1833, President Andrew Jackson, the favorite president of that well-known historian Donald Trump, stared down his former Vice President John C. Calhoun over the South Carolina Nullification Crisis. The state had nullified a federal tariff that favored Northern manufacturing over Southern agriculture. Calhoun saw federal law supremacy as a serious threat to slavery. Consequently, he and his South Carolina neighbors were having none of this tariff thing, and they were preparing to go to war to resist. Jackson responded to South Carolina’s ire with a Proclamation to the people of South Carolina. Considered the greatest state paper of the era, Jackson promised to uphold the federal tariff and warned “disunion by armed force is treason.” In that instance, bloodshed was averted by a compromise offered by Henry Clay that provided for a reduced tariff and enabled Calhoun to save face.
Where’s Henry Clay when you need him?
