What's At Stake in Common Cause v. Rucho

Gerrymandering Challenge Could Produce Landmark Change in U.S. Politics

Posted by Kathay Feng and Dan Vicuña on October 18, 2017


Trial proceedings in Common Cause v. Rucho began this week in Greensboro, N.C.. In this case, Common Cause argues that North Carolina’s congressional map is an unconstitutional partisan gerrymander. Why does this case matter to the future of our democracy? Read on.

What is redistricting?

Redistricting is the process in which voter district lines are redrawn. This includes districts for the U.S. House of Representatives and the state legislature all the way to local seats for city councils and school boards.

What is gerrymandering?

Gerrymandering is the manipulation of the redistricting process for political advantage. It can take many forms. Sometimes, the mapmakers carve a potential opponent’s home or a minority community out of a district or place a big donor into it.

The kind of gerrymandering challenged in Common Cause v. Rucho is partisan gerrymandering, when one party draws districts to maximize the number of seats its candidates win.

In most states, the majority party of the legislature controls the drawing of district lines for that decade. They “pack” as many voters of the opposing party into as few districts as possible and/or “crack” the rest of them into as many districts as possible. The goal of packing is to allow the opposing party to win just a handful of districts by overwhelming margins while ensuring that there are not enough of their voters to win surrounding districts. The goal of cracking is to create districts in which the opposing party’s voters are such a small minority that they cannot elect their preferred candidate. Sometimes the majority party uses both methods to ensure they have an unfair advantage, cementing their control through the entire decade, and robbing voters of real election choices.

Why isn’t partisan gerrymandering unconstitutional?

The U.S. Supreme Court stated in 2015 that partisan gerrymanders “are incompatible with democratic principles” in Arizona State Legislature v. Arizona Independent Redistricting Commission.

Although the Supreme Court has indicated that it disapproves of partisan gerrymandering, it has not yet struck down a plan on those grounds. The challenge has been to find a “judicially manageable standard” to identify when a partisan gerrymander has happened. The courts are looking for a test that lets them judge when egregious partisan gerrymanders have occurred without opening the door to every disgruntled politician or party.  In Vieth v. Jubelirer (2004), Justice Anthony Kennedy and four justices suggested that they were still open to finding the right standard.

The Supreme Court just heard oral arguments in the Wisconsin case, Gill v. Whitford, in which the justices will consider whether the test presented, based primarily on an approach that measures the Efficiency Gap, can serve as a workable test for whether a gerrymander is unconstitutional.

Common Cause hosted a contest, the Gerrymander Standard, to stimulate innovation and papers proposing different approaches to measure partisan gerrymanders. Over the last three years, there has been a flourishing discussion about how to measure when a partisan gerrymander crosses the line, whether to look more at intent or impact, and what role math can play.

In our North Carolina case, Common Cause v. Rucho, Jowei Chen and Jonathan Mattingly are testifying about their approach. Through thousands of computer-generated maps using nonpartisan criteria, both show the range of maps that occur “naturally” when a party is not gunning for an extreme advantage. Both independently show that out of more than 25,000 computer-generated maps using actual election results, the current North Carolina congressional maps are such an outlier that they can only be explained by intentional manipulation.

Just in case the Supreme Court takes a liking to the Efficiency Gap approach in the Wisconsin case, League of Women Voters of North Carolina v. Rucho, a parallel case, shows how the Efficiency Gap test applied to North Carolina’s congressional districts also reveals manipulation.

So why is the North Carolina case so important?

Last year, a federal court ruled that North Carolina’s congressional map was an unconstitutional racial gerrymander and ordered legislators to draw a new map in Cooper v. Harris. North Carolina’s legislators created a new congressional plan that had 10 Republican districts out of 13, and publicly insisted that they had drawn these lines for “partisan advantage” not racial.

Just to make sure the court knew that the new lines were not racially motivated, State Rep. David Lewis publicly stated that the legislature’s goal was purely partisan. You can watch the video here and we've included the transcript of Lewis' remarks just below it:

“I propose that we draw the maps to give partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

“We want to make clear that we are going to use political data in drawing this map.  It is to gain partisan advantage on the map. I want that criteria to be clearly stated and understood. I’m making clear that our intent is to use the political data we have to our partisan advantage.”

The map did indeed result in the election of 10 Republicans and three Democrats despite a relatively even split between votes cast for Republican and Democratic congressional candidates across the state. North Carolina sets up a case for the Supreme Court to consider where the legislature’s ugly partisan intent is laid bare.

Common Cause’s primary assertion is that the new map violates the First Amendment, which prohibits government from favoring or burdening voters based on their political affiliations.

Common Cause v. Rucho is being heard by a three-judge federal trial court panel right now. That means that that the case could be on a fast track to the Supreme Court as early as next year.  Between the Wisconsin and North Carolina cases, the Supreme Court could finally create a constitutional standard that will terminate partisan gerrymanders that have been the hallmark of this decade.

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Office: Common Cause National, Common Cause North Carolina

Issues: Voting and Elections

Tags: Redistricting, Common Cause v. Rucho

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