A significant feature in these cases is the sheer brazenness with which critical legislators in the redistricting process across various states have been willing to blatantly proclaim their aggressive partisan objectives. In the previous major cases before the Court, from prior decades, the Court was not faced with stark evidence of such extreme declarations of partisan manipulative intent.
One wonders whether the in-your-face nature of these declarations will affect the Court’s decisions – including the cumulative effect across several cases of seeing how legislators now openly talk about gerrymandering.
Consider North Carolina, which involves congressional districts that the lower court struck down as Republican partisan gerrymanders. The chairs of the redistricting committees in the house and senate were Rep. Lewis and Sen. Rucho. In the findings of the lower court, Lewis is quoted as follows:
- “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”
- “[W]e want to make clear that to the extent we are going to use political data in drawing this map, it is to gain partisan advantage . . . . I’m making clear that our intent is to use . . . the political data . . . to our partisan advantage.”
- “I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”
- “I acknowledge freely that [the 2016 Plan] would be a political gerrymander, which is not against the law.”
Similarly, Rucho publicly stated: there is “nothing wrong with political gerrymandering” because, as he understood the law, “[i]t is not illegal.”
Jurisdictional motions are currently before the Court in the North Carolina case.
In Maryland, in which the Court has heard argument already, the allegations involve a Democratic partisan gerrymander of congressional districts. Then- Governor O’Malley made the following candid acknowledgments, including in his testimony:
- The goal of the Democrats, in control of the process, was to “re[draw] the lines” the Sixth District to “put more Democrats and Independents into the Sixth District” and ensure “the election of another Democrat.”
- “It was also my intent to . . . create a district where the people would be more likely to elect a Democrat than a Republican, yes, this was clearly my intent.”
In the Wisconsin case involving state legislative districts, which the Court has heard already, the record does not include as dramatic and express proclamations of intent. But the evidence of partisan intent is dramatic there too. As a result of the discovery process, the Court has been exposed to the internal workings of a redistricting process that exhibits equally bald evidence of partisan intent to manipulate the map.
The redistricters, for example, created a series of plans, with titles like “Adam Assertive” and “Joe Aggressive,” which indicated just how aggressive different partisan gerrymandering plans were. They then evaluated these different maps based on how many Republican seats they were expected to yield, if Republicans got a certain percentage of the statewide vote overall for the state house or senate. They also “stress-tested” the maps to make sure they would yield a Republican majority under a range of plausible statewide votes for each political party. The internal workings of the redistricting process, which reveal the unequivocal partisan intent at play, have never been opened up this fully in prior partisan gerrymandering cases before the Court.
All this amounts to much starker, more extreme records of partisan intent than in the two major prior cases from past decades, Davis v. Bandemer, 478 U.S. 109 (1986) and Vieth v. Jubelirer, 541 U.S. 267 (2004). You can find individual cases in the state or lower courts where legislators have occasionally said similar things in the past, but as this troika of cases before the Court presents a pattern of unabashed proclamations of partisan intent. Why have legislators become more willing to so boldly proclaim their partisan aims?
Supreme Court doctrine over the last 15 years might be one reason. As the comments from North Carolina reveal, the message legislators have gotten from the Court’s decisions is that a “political gerrymander … is not against the law.” That message stems partly from something of a misreading of Vieth, but certainly a plausible misreading, since Vieth signaled the Court was unlikely to do anything to address partisan gerrymandering. And it comes from the racial redistricting cases, which starting in 2001 told legislators they could successfully defend against a claim of racial gerrymandering by showing that politics, not race, best explained why voters had been moved between districts. The Court has contributed directly to what is now staring it in the face.
Up until now, the Court has said that plaintiffs must show more than just a partisan intent to manipulate the design of election districts. But faced with the kind of evidence the Court is now beginning to see in case after case of blatant, extreme, and often openly-proclaimed partisan intent to manipulate districting maps, one wonders whether a majority of the Court will find it so easy to permit all this to continue without any judicial constraint.