Background on Common Cause v. Rucho

Common Cause v. Rucho In a Nutshell

This week, trial proceedings in Common Cause v. Rucho began in Greensboro, North Carolina. In this important case about redistricting and voting rights, Common Cause argues before a three-judge federal district court panel 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 within a state. 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. Every 10 years, the federal government conducts the census to give us a snapshot of how many people there are in the United States and where they live. Once we know how many people live in a state, we draw new lines to put the same number of people into each district. This redistricting is supposed to ensure every person has equal representation by drawing districts with an equal number of people.

What is gerrymandering?
Gerrymandering is the manipulation of the redistricting process for political advantage and it can take many forms. Sometimes, the mapmakers carve a potential opponent’s home or a minority community out of a district or place an important landmark or big donor into it. Gerrymandering also can occur when both parties agree to draw districts that make it harder to challenge all incumbents, regardless of party.

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

The party in charge of redistricting can accomplish this by putting as many voters of the opposing party into as few districts as possible (“packing”) and/or dividing the rest of them into as many districts as possible (“cracking”). 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 many 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 over the minority, cementing their control through the entire decade. As Restoring Voter Choice, our report on the 2016 elections showed, these strategies rob voters of real election choices on Election Day.

Is partisan gerrymandering illegal? 
The U.S. Supreme Court stated as recently as 2015 that partisan gerrymanders “are incompatible with democratic principles.” The Court made this statement in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case upholding the right of citizens to take the power to draw districts away from self-interested legislators. The Court has a long history of correcting injustices in redistricting. In Baker v. Carr (1962), the Court held that citizens could sue states for failing for redraw districts following the census. In many cases, a few thousand rural residents had the same number of representatives as hundreds of thousands of urban residents because states had gone decades without updating districts to reflect population changes. More recently, the Court has struck down redistricting plans due to discrimination against racial minorities. In fact, the Court affirmed this year in Cooper v. Harris that North Carolina’s congressional map had been racially gerrymandered. After being ordered by the trial court to draw new maps, 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. Common Cause sued in 2016 to challenge North Carolina’s new congressional maps, asserting unconstitutional partisan gerrymandering in violation of the First Amendment and other grounds.

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. That is, how can courts tell if a partisan gerrymander crosses the line and is unconstitutional? Vieth v. Jubelirer was an important partisan gerrymandering case the Supreme Court heard ruled on in 2004. In that decision, Justice Anthony Kennedy joined four other justices in voting to uphold the map being challenged, but wrote a separate opinion agreeing with the four dissenting justices that courts should hear these cases because a standard could be found in the future. As it now stands, the Supreme Court recognizes that partisan gerrymandering is harmful for our democracy but, with Justice Kennedy and four liberal justices in the lead, is looking for the right test to strike down a map as a partisan gerrymander.

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 (more below), can serve as a workable test for whether a gerrymander is unconstitutional.

How can we measure partisan gerrymandering?

There are many innovative ways to measure partisan gerrymandering. Common Cause has hosted a contest, the Gerrymander Standard, in which we invited scholars to propose their ideas for doing so. The contest produced published papers on a number of approaches, such as the Mean-Median measure, the Computer Simulation approach and others. 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 methods. The scholars use slightly different methods to produce thousands of computer-generated maps using nonpartisan criteria to show the bias in the Legislature-drawn maps.
Chen did three simulations producing 1,000 maps using several statewide elections to determine the partisan preferences of North Carolina communities. None of the maps produced in any simulation resulted in the advantage Republicans enjoyed in the map legislators produced. Mattingly produced more than 24,000 maps using actual votes cast for Democratic and Republican candidates for Congress. Fewer than 1% of the simulated maps produced the same pro-Republican bias found in the maps legislators drew.

In League of Women Voters of North Carolina v. Rucho, which will be litigated at the same time as the Common Cause trial, the plaintiffs are using the Efficiency Gap test to demonstrate the unfair manipulation of North Carolina’s congressional districts. This test shows in one number how much each party’s voters were packed and cracked relative to the other party. In addition to showing whether one party’s voters have been treated unfairly in one election, it can compare the current imbalance to maps produced in many states over many years.

So what happened in North Carolina?

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. Prior to doing so, legislators in charge of redistricting created criteria for drawing districts. One of the criteria was to ensure that 10 of the 13 congressional districts remained in Republican hands. In fact, State Rep. David Lewis doubled down on this goal by stating publicly that:

“I acknowledge freely that this would be a political gerrymander.” Lewis in The News & Observer

“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 twoDemocrats.” Video

“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.” Video

The legislature succeeded in its goal when the map it produced 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. Common Cause sued, stating that the new map violates the First Amendment; Fourteenth Amendment due process and equal protection clauses; Article 1, section 2, which allows the “people of the several states” in each district to elect U.S. House members; and exceeds the authority Article I, section 4 grants to North Carolina to determine “the Times, Places and Manner of holding Elections” for U.S. House.

Will this case go to the Supreme Court?

Probably. Many redistricting cases are required by statute to be heard before a three-judge federal panel with a direct right of appeal to the Supreme Court. In most non-redistricting cases, the Supreme Court can choose not to hear a case and that choice creates no new law. The lower court decision stands, but it only applies to the case at hand or, in the case of circuit courts of appeals, the area of the country in their jurisdiction.

However, in redistricting cases like Common Cause v. Rucho that are heard by a three-judge panel, the Supreme Court has to make a proactive decision about whether to take an appeal. That is because a decision not to hear a case means that the lower court opinion becomes the law of the land as if the Supreme Court had written it. For that reason, the Supreme Court generally prefers to hear these cases and write its own opinions. So it is very likely that the Supreme Court will hear Common Cause v. Rucho regardless of the outcome at trial, possibly as early as next year.