The Supreme Court as Gerrymandering Outlier

Remarkably, yesterday’s decision striking down North Carolina’s state legislative maps as partisan gerrymanders was the eighth straight ruling against gerrymandering by a state or lower federal court. Florida and Pennsylvania state courts preceded yesterday’s decision by a three-judge North Carolina trial court. And federal district courts invalidated gerrymanders in Maryland, Michigan, North Carolina, Ohio, and Wisconsin before their efforts were quashed by the Supreme Court in Rucho. The Supreme Court remains the only one in recent years to decline to nullify a gerrymander (let alone to hold that no gerrymander can ever be nullified). The Supreme Court is thus the outlier in the American judiciary, the lone exception to an ever-spreading judicial norm against gerrymandering.

The North Carolina trial court confirmed the Supreme Court’s isolation in a series of pointed passages. It repeatedly cited the conclusions of the federal district court that was reversed in Rucho—about standing, the validity of computer simulations of district maps, and even the appropriate legal standard. The North Carolina court also relied heavily on Justice Kagan’s dissent in Rucho, explicitly adopting her proposed test of “(1) intent, (2) effects, and (3) causation.” And the North Carolina court grounded this test in state constitutional analogues to the First Amendment and the Equal Protection Clause: the precise provisions the Rucho majority thought “provide[] no basis whatever to guide the exercise of judicial discretion.”

Beyond further demonstrating that courts are perfectly capable of deciding gerrymandering claims, the North Carolina decision is notable in several respects. First, it embraced the same three-part standard as the Michigan, North Carolina, Ohio, and Wisconsin district courts (as well as Justice Kagan). It didn’t follow the lead of the Pennsylvania Supreme Court, which focused on districts’ compliance with traditional criteria. Second, however, the North Carolina decision established the plans’ discriminatory effects solely by comparing them to computer-simulated maps. In contrast, the Michigan, North Carolina, Ohio, and Wisconsin district courts relied on both computer simulations and evidence that the challenged plans were more asymmetric than almost all plans historically.

Third, the North Carolina court’s remedy was quite stringent: the complete extirpation of partisanship from redistricting. It instructed the legislature that “[p]artisan considerations and election results data shall not be used in the drawing of . . . the Remedial Maps.” If this directive is followed, the computer simulations suggest that Democrats should win five to ten more House seats (depending on electoral conditions) and two to four more Senate seats. And fourth, the North Carolina decision is just as applicable to congressional as to state legislative districts. North Carolina’s gerrymandered congressional plan—the plan the Supreme Court failed to invalidate in Rucho—is thus on thin ice. And so will be any efforts by the North Carolina legislature to gerrymander (or even to consider partisanship) in the 2020 redistricting cycle. As long as the North Carolina decision remains good law, North Carolina maps must be nonpartisan.

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