In 2016, the Republican-controlled legislature of North Carolina mapped the state’s congressional districts with the aim of ensuring that elections produced more victories for their party than for Democrats.
“I think electing Republicans is better than electing Democrats,” said one of the two Republicans who chaired the redistricting committee. “So I drew this map to help foster what I think is better for the country.”
In elections that November, Republicans won 10 of the state’s 13 congressional districts. That despite the reality that four years earlier, Democratic candidates received more votes statewide than Republican candidates. (States redraw congressional districts every 10 years based on census data.) In elections last year, Republicans won nine seats, while Democrats won three.
On Thursday, a majority of the U.S. Supreme Court ruled that inequality drawn into the North Carolina map (and an equally partisan district drawn by Democratic officials in Maryland) did not intentionally dilute the electoral strength of Democratic voters in violation of the Equal Protection Clause of the Fourteenth Amendment. Nor did the map violate the First Amendment rights of Democratic voters (or, in Maryland, Republicans) by retaliating against them for their political beliefs.
The question, said Chief Justice Roberts, who wrote on behalf of the majority, is not whether legislators can be partisans when drawing the boundaries of congressional districts (they can, according to the court), but whether the so-called gerrymander has gone too far. Or, as Roberts quoted the court from in a 2006 ruling, “how much partisan dominance is too much?”
According to the majority, claims of partisan gerrymander are, in essence, a contention that legislators should draw congressional districts so that they hew as closely as possible to allocating seats to the parties based on what they’re anticipated statewide vote will be.
But, said the court, the framers of the Constitution did not think it required such representation. Historically, “a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation,” Roberts noted.
A federal court, as the majority sees it, cannot adjudicate whether the map is fair. That determination, said Roberts, falls to the states. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,” he wrote.
Not so, said the court’s four more liberal justices. The gerrymandering at issue in the appeal “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” Justice Kagan wrote in dissent. “In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.”
The cases from North Carolina and Maryland show that politicians can, in essence, “cherry-pick voters to ensure their reelection” said Justice Kagan, who noted that the majority disputed none of the abuses documented in either state.
The majority’s “complacency” in the face of those wrongs means that partisan gerrymandering will only get worse (“or better, depending on your perspective”) as the ability to collect and analyze data improves, Justice Kagan predicted.
Improvements in technology give officials who aim to diminish the influence of one group of voters at the expense of another the ability to do so with precision. “Big data and modern technology – of just the kind that the mapmakers in North Carolina and Maryland used – make today’s gerrymandering altogether different from the crude linedrawing of the past,” observed Justice Kagan.
“What was possible with paper and pen—or even with Windows 95—doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning,” she wrote. “And someplace along this road, ‘we the people’ become sovereign no longer.”