DC DISPATCH-Being apolitical is a designation few in Washington D.C. would agree to or identify with.
While we expect our White House and Congress to openly live and embrace political leanings, the Supreme Court was designed to be a different branch. Chief Justice John Roberts has often expressed his desire and intent to keep the Court apolitical despite the very political process that leads to the nomination and confirmation of the justices.
In 2016, in Cooper v Harris, the Supreme Court (SCOTUS) ruled that excessive partisan gerrymandering was unconstitutional. While excessive politically motivated or racially biased gerrymandering would fall under this prohibition, some argue that there is a gray area where motivation is more obscure and not as easily identifiable. Gerrymandering, the manipulation of the boundaries of an electoral constituency so as to favor one party or class, has been used to achieve politically motivated outcomes by artificially enhancing or excluding particular demographic groups. As we see in the Maryland and North Carolina cases, both Republicans and Democrats face criticism in their race to solidify territory that would strengthen their respective parties by drawing maps to secure political advantage.
Typically, partisan legislatures draw the maps that are updated post-census, but in two cases that have worked their way through the federal courts, Benisek v. Lamone (MD) and Rucho v. Common Cause (NC), SCOTUS has been tasked with calling the balls and strikes on what are acceptable geographic boundaries. In Maryland, there are eight congressional seats. Seven of those are traditionally held by Democrats and one by a Republican. There has been minimal population growth in the state so there weren't additional seats allocated. At first glance, an unbiased observer would be shocked to see that Republicans only have one congressional seat when they have a third of the state painted red. Yet in the 6th District, Republicans challenged the mapping and the Federal court ruled that Maryland unconstitutionally drew the boundary lines to benefit Democrats.
North Carolina's congressional districts face similar criticism but this time from the Democrats who make the same partisan manipulation claims against Republicans. With voter registration rolls signaling close to 50/50 in the state, Democrats have three congressional seats compared to the 10 Republican-held seats. In 2016, the Federal Courts struck down Republican district maps due to obvious attempts to underrepresent the African America vote. When the Republican-controlled state legislature was ordered to create a new map, the legislature demurred and went back to the courts with a political map in which Republicans had a clear advantage. Republicans argued that they couldn’t redraw the map in time for the election, so they ended up with a Supra Majority in the legislature for 2018.
In a supplemental twist, deceased Republican lobbyist, Thomas Hofeller, the mastermind of gerrymandering, had already redrawn the North Carolina map in anticipation of an unfavorable court ruling. A copy of the redistricted map was readily available on his computer. This discovery challenged Republican official testimony under oath that they could not make timely changes to the district map, an issue the lower court will revisit shortly. Hofeller also left proof post-mortem that the citizenship question on the census should be included in order to suppress the African American and Hispanic voting to advantage Republican voting rolls.
Before the close of the 2019 Supreme Court session, the court is on the eve of two of its most consequential decisions that will resonate across the country. The justices’ ruling will not only impact the 2020 Presidential Election but also set an important precedent as to whether courts have the authority to be the final say in congressional redistricting disputes. With greater access to analytics and technology to target registered voters, it would be remiss to think that state legislatures are not overly partisan. In many cases, they are drawing districts that ensure their respective reflections. This represents an inherent political conflict of interest that tests the SCOTUS mantra that excessive partisan gerrymandering is unconstitutional. Proportionality, one-person one-vote, needs to be the goal. And though justices are insulated from the pressures of political life in the forms of elections and fundraising, I expect the conservative-leaning court to direct the states to determine their respective maps with Justice Roberts as a swing vote for the Republican court.
If the SCOTUS is truly interested in taking the partisan out of “parmandering,” it should send the case back to the lower courts and order a Colorado type ballot initiative that states like Michigan, Utah, Ohio have also found successful. These states have redirected the power over elections to the people and away from the state legislature by creating non-partisan commissions. If free and fair elections are important to this country, then power to re-draw state districts must be vested with non-political entities.
(Sara Corcoran writes DC Dispatch and covers the nation’s capital for CityWatch. She is the Publisher of the California and National Courts Monitor and contributes to Daily Koz, The Frontier Post in Pakistan and other important news publications.) Edited for CityWatch by Linda Abrams.