News Clips

Good-government groups such as Common Cause have been going after gerrymanders in both Democratic and Republican states for some time. The Supreme Court, in a 2019 case, held that federal courts can’t hear claims of partisan gerrymandering. The Court said that there’s just no standard to apply, and so federal courts are closed—there are other ways of dealing with these problems. Some states have created redistricting commissions; others have state courts that have policed partisan gerrymandering. That’s what happened in Moore v. Harper. After Common Cause lost in the U.S. Supreme Court, the group argued before the state Supreme Court in North Carolina that partisan gerrymandering violates the state constitution, and they won on that claim. The state Supreme Court ordered North Carolina to redraw its districts, to make them a little fairer in a state that is pretty evenly divided between Democrats and Republicans.

Pundits who focused on Democratic versus Republican battles before the election missed the real story — that fairly drawn voting maps boosted turnout and elevated voter choices in places like California, Colorado and North Carolina. The inspiring turnout of young people, women and people of color in the midterm elections came because people’s interests, and not politicians, were put first in redistricting. We saw this in Michigan, where University of Michigan students stood in line hours into the frigid night because they knew their votes mattered. But our democracy is fragile. On December 7, the Supreme Court will hear Moore v. Harper, which stemmed from Common Cause’s fight for responsive voting maps in North Carolina. The court will decide if state legislatures can rig voting maps and elections without facing the checks and balances of state courts.

Luttig, undeterred, praised his new legal bedfellows. “I’m honored to be co-counsel representing Common Cause in Moore v. Harper,” he told me. He described Katyal as a “dear friend,” and “one of the very finest Supreme Court advocates and originalist constitutional scholars in the country today.” As for the case, Luttig said, “Common Cause and the other respondents are not only on the side of the Constitution of the United States—they are also on the side of the angels.” 

The main reason behind the fight over assets, said Jonathan Mehta Stein of California Common Cause, is the political benefits they can bring to a council member. “It all goes back to campaign fundraising and building power,” said Stein, who is the group’s executive director. Those benefits are twofold, Stein said. First, having a business or commercial hub in your district puts you in contact with business owners who want to curry favor with you, which translates into campaign donations. And second, having a significant asset such as a major event space or a high-profile business gives you opportunities to hobnob with VIPs and powerful state figures. “You’re building your networks; you’re building your Rolodex,” developing social cachet that will come in handy when you’re running for higher office, he said. What the call revealed was council members “trying to build the political power of one racial or ethnic group at the expense of another,” Stein said. “But their own interest in the future of their political careers was also at play amid all the racism. ... When they’re trying to secure economic assets in their districts or their friends’ districts, they are trying to secure a glide path to more power, more influence and higher office for themselves and their friends.”

“Our government will be run by and for the politicians, not the people,” said Suzanne Almeida, Common Cause’s director of state operations, during a Wednesday conference call with reporters. “The danger is not just that partisan political leaders will handpick winners and losers … It’s that we the people will no longer have a fully representative government.”

The court’s decision in Rucho v. Common Cause barred federal court challenges to partisan gerrymanders. Writing for the 5-4 majority, Chief Justice John Roberts said it was not an issue for the federal judiciary to decide, but emphasized the ruling did not “condemn complaints about districting to echo into a void.” In fact, the issue was being actively addressed at the state level, Roberts wrote. He cited Florida’s amendment and one of Pariente’s opinions. Responding to liberal justices who wanted to reject Rucho’s map as an unconstitutional gerrymander, Roberts wrote they could not because “there is no ‘Fair Districts Amendment’ to the Federal Constitution.”