Rucho: Not a Rerun of Whitford

In the wake of the Supreme Court’s order agreeing to hear the North Carolina partisan gerrymandering case, I wanted to flag some key differences between this suit and last year’s Wisconsin case:

  1. Standing: The Court held that the Wisconsin plaintiffs hadn’t yet proven their standing to bring a partisan vote dilution claim. The Court also clarified the standard for establishing standing: a litigant must live in a district that (1) is cracked or packed; and (2) could be uncracked or unpacked by an alternative map. This time around, there’s no serious dispute that the North Carolina plaintiffs have standing in at least nine districts. These districts were created by dispersing or overconcentrating Democratic voters throughout the state. This cracking and packing was also entirely unnecessary, as shown by a demonstration map that uncracks and unpacks the plaintiffs residing in the districts. Consequently, there isn’t an easy way for the Court to avoid the merits in this case. If the plaintiffs have standing, they can lose only if the Court deems the cause of action nonjusticiable or announces a test and rules that the plaintiffs haven’t met it. These are exactly the substantive issues the Court dodged in the Wisconsin case.
  2. A District-Specific Claim: In the Wisconsin case, the plaintiffs challenged the district map in its entirety on partisan vote dilution grounds. Here, the plaintiffs have subtly but significantly revised their dilution claims. These claims are now district-specific, not statewide, requiring as an element that a particular district was designed with partisan intent. You can tell the claims really are district-specific because even if they all succeeded, North Carolina’s whole congressional map would not be struck down. Rather, just the nine districts where the plaintiffs have standing and can show partisan intent would be invalidated, and the state would not be obligated to change the map’s other districts.
  3. The Associational Theory: In the Wisconsin case, Justice Kagan laid out a non-dilutionary theory of partisan gerrymandering. On this view, the harm of gerrymandering is not that it dilutes a party’s electoral influence but rather that it imposes a burden on a party’s associational activities: recruiting candidates, mobilizing volunteers, raising funds, and so on. The plaintiffs in the Wisconsin case did not explicitly bring an associational claim. But the Common Cause plaintiffs in North Carolina (one of the two sets of litigants) do assert this challenge.
  4. Intent Evidence: In the Wisconsin case, the drafters’ intent to benefit their party and handicap the opposition had to be inferred from (abundant) circumstantial evidence. Here, though, there is a smoking gun. North Carolina’s redistricting committee actually approved a criterion called “Partisan Advantage” that required “the partisan makeup of the congressional delegation” to be “10 Republicans and 3 Democrats.”
  5. Effect Evidence: In the Wisconsin case, the plaintiffs focused on a particular quantitative measure of partisan asymmetry: the efficiency gap. Here, on the other hand, the plaintiffs covered the field; they also introduced evidence about two other asymmetry metrics as well as analyses showing that the pro-Republican skew of North Carolina’s map would persist under almost any electoral environment. These analyses were corroborated by the results of the 2018 election; in the biggest Democratic wave since Watergate, Democrats failed to pick up a single House seat in North Carolina.
  6. Political Geography Evidence: In the Wisconsin case, no computer-simulated district maps were admitted into evidence. But here, two experts (Jowei Chen and Jonathan Mattingly) randomly generated thousands of congressional maps for North Carolina using all of the state’s nonpartisan criteria. Most of these maps were highly symmetric, indicating that the pro-Republican skew of the enacted plan cannot be attributed to the state’s political geography or any other nonpartisan factor.
  7. The State’s Position: In the Wisconsin case, the defendants focused on standing and the statewide nature of the plaintiffs’ claim. Here, in contrast, North Carolina’s lead argument is that partisan gerrymandering is inherently nonjusticiable—that all such challenges should be foreclosed for all time. This is obviously a much more aggressive position, which dramatically raises the stakes for the Court, the litigants, and American democracy writ large.

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