On Elections

How people elect parliaments

US Gerrymandering declared unconstitutional – again

A superior federal court in another US state – this time North Carolina – has declared that partisan gerrymandering of electoral districts is contrary to the US Constitution.

A three-judge panel of the US District Court has held the state’s current national House of Representatives electoral district boundary map – in use since 2012 – to be an “unconstitutional partisan gerrymander”.

The court has giving the state legislature just two weeks to legislate, under court supervision, for a new and legally acceptable map.

The timetable is so tight it could “potentially throw this year’s elections into chaos,” according to news site Politico.

However leading US elections expert Rick Hasen warns that the court’s finding may immediately be appealed to the US Supreme Court, with the defendants seeking a stay against the ruling.

North Carolina’s people have 13 representatives in the House of Representatives. Each is elected in a single-member district by winning a plurality of the vote.

But the boundaries of the 13 state electoral districts were drawn up entirely by Republican state legislators, initially in 2011-12 after the last national census.

At the 2012 elections more of North Carolina’s voters (2.2 million) wanted Democratic representation in Congress than voted for Republican candidates (2.1 million), giving Democrats a narrow 51%-49% vote share advantage. (All 13 seats were contested by both parties, making the vote totals comparable.)

But amazingly, the gerrymandered boundaries contrived an outcome in which a plurality of the vote in 9 of the 13 seats was won by Republican candidates, and in just 4 by Democrats.

Stephen Wolf, analyst for the liberal Daily Kos website, estimates that the national impact of gerrymandering on the 2012 elections might have been around a 25 seat gain in House seats for the Republics across the nation.

The US House is fully re-elected every two years. In the November 2014 mid-term elections voter turnouts were (as usual) lower than 2012. Republican candidates won 1.55 million votes, while Democrats (running in just 12 of the 13 seats) totalled 1.2 million votes.

This 55%-44% advantaged now converted into 10 Republican seat wins to 3 for the Democrats.

For the 2016 elections, the courts obliged the state legislature to redraw the earlier unacceptable 2012 maps due to racial gerrymandering in some seats.

But what resulted was the equally gerrymandered maps which were today ruled to be unconstitutional.

In November 2016, both parties contested all 13 seats on the revised boundaries. The Republicans maintaining a vote lead at 2.4 million votes to 2.1 million (53% to 47%). The Republicans again held their highly disproportional 10 to 3 seat outcome.

The 2016 gerrymandering has now been unambiguously revealed to have deliberately packed as many Democrat voters as possible into their three ultra-safe seats, so that the Republican candidates could score narrower wins in the 10 others.

The defendants, having to deny that they has illegally used race as a factor in drawing up the boundaries, brazenly provided the alternative explanation that they had used partisan geographical factors.

One of the key Republican party figures who developed the current district boundaries openly admitted during the court proceedings that he proposed that the boundary Committee draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats only because he did not believe it would be possible to draw a map resulting on 11 Republicans and 2 Democrats.

The state legislative boundaries – which determine control of the state legislatures which in turn decide the federal congressional district boundaries – are also gerrymandered, maintaining a solid Republican control of the state legislature.

However the state’s voters rebelled against the party in November 2016, electing Democratic Governor Roy Cooper.

Now that the court has ordered the state legislature to create new district boundary maps, Governor Cooper will be able to veto any unfairly pro-Republican new boundary legislation, forcing the legislative Republicans to find both a legally and politically acceptable new outcome.

In anticipation that the North Carolina Republicans controlling the state legislature may attempt to go-slow implementing the decision, the Court has specifically required the state to produce a new, constitutionally acceptable map by January 24.

With the primary season soon to get underway for the biennial election of congressional representatives in November, all parties need the districting issue to be resolved within a few months at most. [Update: under state law, nomination for primary elections opens on 12 February, with the actual primary elections to be held in May.]

The Brennan Centre for Justice at New York University School of Law is tracking litigation over gerrymandering issues in ten of the 50 US states.

The cases involve district boundaries at both state and federal level, but the constitutional law applying to both levels appears to be the same.

image - Brennan Centre - PendingLitigationCasesMap_January2018v2

Ten US states have already seen legal challenges to gerrymandered electoral boundaries; action in more states may also arise depending on what the Supreme Court determines the law to be (Brennan Centre)

The court battles over gerrymandering in Wisconsin and in Maryland – like that for North Carolina – have seen the federal courts find the current state legislative district boundaries in those states to be unconstitutional.

Maryland’s map, unlike those in most other states, was drawn up by Democratic legislators to favour their party.

Both cases have been appealed to the United States Supreme Court, which has heard the Wisconsin case arguments already and is pondering its judgement.

Meanwhile the state of Virginia, where a recent House of Delegates election had Democrats win statewide voter support by 55% to 44%, but saw control the house turned into a 51-49 Republican majority, due to similar gerrymandering.

The ruling of the Supreme Court will apply simultaneously to all federal and state districting exercises, potentially triggering a major round of new boundary creations this year.

But if the courts, led by the Supreme Court, intend to confirm that partisan gerrymandering is indeed subject to constitutional limits, they need to move swiftly.

The season for primary elections is starting in the next few months, and all parties have an obvious interest in knowing what electoral boundaries will be used.

If the courts insist that current boundaries in Wisconsin, North Carolina and Maryland – and possibly other states – must be redrawn, time is very pressing.

If the Supreme Court wants until June – the typical season for handing down major decisions – the outcomes could be incredibly awkward, as there would be little time left to re-organise the affected electoral systems, even if legislatures somehow start cooperating to do so.

image - US Supreme Court building

The US Supreme Court needs to decide what the law is on gerrymandering – and quickly

But if the Court rules that some states have unconstitutional maps, but the 2018 elections still proceed on the current boundaries, the resulting situation would obviously involve members of Congress being unconstitutionally elected.

The US courts usually like to take their time, and craft judgements which allow lenient periods to implement major changes.

But in what is already looking like a highly contestable election year for 2018, that simply may not be possible.

[Update: Anne Blythe reports in the Charlotte Observer that Republican legislators in the state Assembly will indeed appeal today’s decision, and have specifically criticised the lead judge in the case, James A. Wynn of the 4th U.S. Circuit Court of Appeals.]

[Further, Dan Way reports in the Carolina Journal that a decision is also imminent in a separate  legal challenge to the boundaries of the North Carolina state General Assembly legislative electoral districts.]


More reports:

North Carolina Congressional Map Ruled Unconstitutionally Gerrymandered (Alan Binder and Michael Wines, New York Times, 9 Jan)

Partisan gerrymandering: Republican map of North Carolina ruled illegal (The Guardian, 9 Jan)

NC congressional districts struck down as unconstitutional partisan gerrymanders (Anne Blythe, Charlotte Observer, 9 Jan)

Judges strike down N.C. congressional districts as overly partisan (Carolina Journal, 9 Jan)



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