SCOTUS Punts on Partisan Gerrymandering in NC, Upholds Racially-Tainted TX Districts

Three gerrymandering cases decided today highlight the Supreme Court’s reluctance to overrule mapmaking decisions made by state legislatures, even when there’s strong evidence that congressional or legislative district lines have been drawn with racial prejudice or partisan advantage in mind.

In a pair of North Carolina cases, including one brought by Common Cause, the justices for the second time in a week found a way to dodge the thorny issue of partisan gerrymandering. In a Texas case involving racial bias in the drawing of state legislative districts, a sharply divided court found sufficient evidence of an “impermissible racial gerrymander” in just one of four districts challenged by African-American and Hispanic voters.

Here’s a breakdown:

North Carolina – In an unsigned order, the justices sent two challenges to the state’s congressional districts back to a lower court that in January ruled that the districts were unconstitutionally skewed to favor Republican candidates.

The lower court was ordered to reconsider that ruling in light of the Supreme Court’s decision last week that the plaintiffs in redistricting challenges from Maryland and Wisconsin did not have standing to sue.

The ruling means that North Carolina voters will go to the polls this fall in congressional districts drawn to guarantee Republicans a 10-3 majority in the state’s delegation to the House of Representatives. But Common Cause leaders stressed that the fight for fair districts will continue – in court and in a mushrooming national movement to shift responsibility for drawing districts to non-partisan citizens’ commissions.

“Justice delayed is justice denied,” said Common Cause President Karen Hobert Flynn. “However, we are confident that we have standing to be able to make our way back to the Supreme Court so that the justices may draw a clear line against partisan political gerrymanders that leave too many Americans without fair representation.

“In a democracy, voters should be choosing politicians, and we hope the Supreme Court will make clear with this case that politicians should not be choosing their voters for partisan political gain,” Hobert Flynn added. “The Court can still set a clear standard that will restore the vote to millions of Americans who have essentially been disenfranchised by gerrymanders perpetrated by Democratic and Republican legislatures.”

The three-judge district court that first heard Rucho v. Common Cause and a companion case brought by the League of Women Voters in North Carolina ruled in January that both plaintiffs had standing to pursue their claims. But the plaintiffs relied on different legal theories, with Common Cause arguing that the North Carolina districts violate the Constitution’s guarantees of freedom of speech and freedom of association because they were engineered to punish Democratic voters and stop them from electing candidates of their choice.

The League of Women Voters plaintiffs pursued a standing argument similar to the one the high court rejected in last week’s decisions from Wisconsin and Maryland gerrymandering challenges.

Evidence in Rucho included admissions by GOP legislative leaders that they hoped to draw districts that would produce an 11-2 Republican majority but could not come up with a plan to achieve that. The 10-3 advantage comes even though registered Democrats outnumber Republicans in the Tar Heel state, 39 percent to 30 percent. The GOP majority in the state legislature drew districts that break up some Democratic strongholds, placing tens of thousands of Democratic voters in districts dominated by Republican and independents who regularly vote Republican.

“The Court’s delay in reviewing Rucho v. Common Cause, challenging partisan gerrymandering only adds fuel to Common Cause and its million members to mobilize to enact redistricting reforms at the state and local level,” said Kathay Feng, Common Cause national redistricting director.

“In 2015, (in an Arizona case) the Court affirmed the people’s right to create redistricting commissions…” Feng said. “We are now seizing that opportunity with voter-passed reforms in Ohio and soon in Michigan, Colorado, Utah, and Missouri where voters will cast ballots on their own redistricting reform measures.”

Texas – The court’s 5-4 ruling in Abbott v. Perez ends a complicated legal battle that goes back to 2011. The decision sparked promises of a new fight to shift responsibility for redistricting to an independent citizens commission.

“In the face of a U.S. Supreme Court majority that is hostile to voting rights, it is time for Texans to take up the fight for fair maps by establishing an independent redistricting commission,” said Anthony Gutierrez, executive director of Common Cause Texas. “In a democracy, politicians have no business choosing their voters, it is the voters who should be choosing their politicians.”

A three-judge federal court in Texas found that state legislative districts drawn by the Republican-controlled legislature in 2011 were shaped to minimize the voting power of African-American and Hispanic voters.

The Texas judges first proposed a new, dramatically different map, but the Supreme Court said they went too far and ordered them to draw placeholder boundaries that cured the racial gerrymander but largely resembled the legislature’s original plan. The Texas judges followed those instructions and the legislature in 2013 made their revised map permanent, with minor adjustments.

Then, in 2017, the judges in Texas ruled that parts of the modified map also were racially discriminatory, prompting Texas to appeal again.

Writing for today’s majority, Justice Samuel Alito said the plaintiffs failed to prove that the legislature “acted in bad faith and engaged in intentional discrimination” in 2013. His opinion upheld three of four challenged districts but said the fourth, in the Fort Worth area, was impermissible.

In a stinging dissent, Justice Sonia Sotomayor wrote that the majority “went out of its way” to uphold the districts, ignoring “substantial evidence” that the new maps were drawn to discriminate against minority voters.

The ruling “means that after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas – despite constituting a majority of the population within the state – will continue to be underrepresented in the political process,” she added.

 

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