Rep. David Lewis (R-Harnett) will secure his place in North Carolina political history if for no other reason than having uttered that sentence. Everyone’s read it, North Carolina has been the butt of many jokes about it, and tomorrow, the U.S. Supreme Court could decide a case based on it.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” Lewis said 2016 during the congressional redistricting process.
The statement came right after he said he considered the state congressional map to be a partisan gerrymander, but that it wasn’t against the law to do that. He wasn’t wrong at the time, but the highest court in the nation has a chance this term to change the legality of drawing district lines for partisan gain.
Lewis’ words are the strongest piece of evidence in two sibling cases that will be heard tomorrow, Common Cause v. Rucho and League of Women Voters v. Rucho. His statements have given partisan gerrymandering litigators fuel for their fire, in part because no legislators in any other states have been as blatant about their political intent during a redistricting process.
Lewis isn’t worried – in fact, he’s doubled down on his position in print. He and Sen. Ralph Hise (R-Mitchell) co-wrote an editorial that was published today in The Atlantic claiming the statement wasn’t a gaffe, but rather a statement widely taken out of context over the years. It was, the two lawmakers claim, “a hyperbolic but necessary retort to ongoing litigation and the shifting goalposts imposed by a federal court.”
“You don’t need to agree with the statement, and you don’t need to support partisan considerations in redistricting,” Lewis and Hise wrote. “That’s not our intent in writing this. But you should understand the full story, because reaching conclusions based on one spoken sentence is rarely justified and never prudent.”
Here is some context: When lawmakers were redrawing the 2016 congressional map, it was because a federal court had just ruled the original, from 2011, unconstitutionally racially gerrymandered.
Instead of considering race during the corrective redistricting process, GOP legislators had the General Assembly consider only maps that gave their political party a 10-3 advantage. In comments made at the time, Lewis said he wanted it to be “clearly stated and understood” that lawmakers were using political data to draw the map to gain partisan advantage.
In The Atlantic piece, Lewis and Hise blame Democratic activists for persuading judges to throw out their original map on grounds of racial gerrymandering. Their challenge to GOP maps wasn’t really about race, the lawmakers claim; it was about advancing maps that would benefit Democrats.
Lewis and Hise then go on to explain the reasoning for what ensued – that is, for Lewis’ state of mind when he made that statement.
“Federal courts, including the Supreme Court, have long held that political considerations are fair game, and maps produced on the basis of those considerations are perfectly legal,” they write. “Having just been faulted by a federal court for unnecessarily using racial data, and instructed by that court and others that political considerations are just fine, we set out to make it clear to the world that we relied on traditional criteria, including politics – not race – when redrawing the maps at [Judge Roger] Gregory’s order. Direct court instruction and the law told us that doing so would end the matter.”
Lewis and Hise write that Lewis’ statement was merely about reinforcing that lawmakers could have used a map even more favorable to Republicans – 11-to-two instead of 10-to-three – had they ignored other traditional criteria.
The problem with doubling down on that particular part of Lewis’ statement comes from context not mentioned in The Atlantic article – context from a recent partisan gerrymandering argument at the U.S. Supreme Court.
Now retired Justice Anthony Kennedy asked twice during arguments in Gill v. Whitford – a Wisconsin partisan gerrymandering case argued in 2018 – whether redistricting criteria that required favoring one party over another would be unconstitutional. Attorneys arguing the case agreed it would be unconstitutional and two other justices affirmatively indicated that such a requirement could be a “manageable standard” for identifying an unconstitutional law.
Court watchers, advocates and election law attorneys agree that if the high court ever plans to set a partisan gerrymandering standard, North Carolina has the best test cases.
“If the North Carolina map isn’t constitutionally problematic, it’s hard to see what would be,” tweeted Michael Li, Senior Counsel for the Brennan Center for Justice’s Democracy Program. “North Carolina Republicans didn’t just get caught red-handed robbing the bank, they had a press conference beforehand & said, ‘we are going to rob the bank.’”
Lewis and Hise are right though in their sentiment that a case can’t be made on “on 35 words and no context.”
There are a host of legal arguments in Common Cause and League of Women Voters for justices to choose from if they decide to outlaw or set a standard for partisan gerrymandering.
There’s also no shortage of evidence in either case, whether it’s other maps that could have been considered – there are thousands of simulations using traditional redistricting criteria without political considerations, and not one ends in a 10-3 Republican advantage – or information about the “efficiency gap,” a measurement of partisan gerrymandering.
Daniel Tokaji, an election law and First Amendment professor from Moritz College of Law, previously said he believes the strongest legal basis of the Common Cause case in particular is the violation of First Amendment associational rights.
Tokaji said there is 50 years of Supreme Court precedent protecting associational rights and that in some cases, voting is just such a right.
“It’s not only the effect on who gets elected to office that courts should consider…but also effects on the disfavored political party and its supporters outside the electoral process,” he said.
League of Women Voters attorneys are similarly making a First Amendment claim, but focusing also on blatant examples of voters being denied their constitutional rights to equal protection under the law.
Attorneys from each of the two sibling cases will present during the 70-minute oral argument tomorrow. Allison Riggs, a senior voting rights attorney at the Southern Coalition for Social Justice, will argue in the League of Women Voters case.
“This case cries out for intervention by the U.S. Supreme Court to rein in out-of-control partisan manipulation of the redistricting process,” she said in a recent news release. “When legislators brag about their attempts to entrench themselves in political power and enact maps designed to guarantee election winners before a single vote is cast, courts are the only hope for a remedy. These legislative actions are inconsistent with the basic principles of representative democracy that we hold so dear.”
Before Kennedy retired, partisan gerrymandering arguments were typically tailored for him – he was considered the swing vote. But attorneys are arguing to a different court this time around now that the addition of Justice Brett Kavanaugh has further solidified the court’s 5-4 conservative majority.
Riggs speculated earlier this year that the court might issue as narrow a ruling as possible and that it would be up to attorneys to see just how expansive it could be in a particular situation. But she added that the enunciation of any kind of standard would be a good thing.
Justices will also hear arguments later Tuesday from attorneys arguing a Democratic gerrymandering case out of Maryland.
GOP lawmakers from North Carolina want the court to rule partisan gerrymandering nonjusticiable, which would mean the issue could not be decided by legal principles. SCOTUSblog has a full preview of the arguments of both cases, but explains specifically the North Carolina lawmakers’ stance on the justiciability argument.
The legislators suggest that the lack of a workable standard to review partisan-gerrymandering claims is not surprising, because the injuries allegedly suffered by plaintiffs like the ones in the North Carolina case are merely ‘generalized political grievances,’ rather than specific injuries. Trying to formulate more manageable standards, they argue, would be ‘an exercise in futility.’
Faced with this difficulty, the legislators contend, the district court gave up ‘trying to decide ‘how much is too much’ partisan influence in redistricting and instead ‘declared partisan gerrymandering categorically inconsistent with the Constitution.’ But that view conflicts with both the Supreme Court’s earlier cases – which have repeatedly recognized that ‘some degree of partisanship’ can play a role in redistricting – and the Constitution itself, which explicitly gives state legislatures the power to draw federal congressional districts and authorizes Congress to change those districts.”
Justices, though, will hear arguments from plaintiffs about quite specific injuries, at least in the North Carolina case. And the plaintiffs have contended the courts are the only ones that can fix partisan gerrymandering. The SCOTUSblog article continues:
The plaintiffs emphasize that the relevant question for the justices is not whether courts should ever consider partisan gerrymandering cases, but instead whether this case is one that courts can consider. Indeed, the plaintiffs observe, the Supreme Court ‘has repeatedly rejected’ the idea that courts should stay out of partisan gerrymandering – which makes sense given that courts regularly consider claims of racial gerrymandering, which is caused by the same kind of behavior by election officials and requires courts to conduct the same kind of analyses. Moreover, nothing bars legislatures from considering politics or party affiliation when they draw new maps, and in fact the Supreme Court has said that they can consider those factors – for example, so that two incumbents don’t have to run against each other under a new map. ‘It may be impossible for legislators to make districting decisions without considering the political consequences of their actions,’ the plaintiffs acknowledge. ‘But,’ they continue, ‘that does not entitle legislators to make such decisions for the purpose of harming a disfavored political group.’”
While a decision from the court is not likely until later the spring at the earliest, it hasn’t stopped prominent figures from expressing their views on the result they would like to see. North Carolina Gov. Roy Cooper, a Democrat, and Maryland Gov. Larry Hogan, a Republican, teamed up to write an editorial in the Washington Post about their shared belief that politicians shouldn’t draw electoral maps.
“We are governors from different parties with different views on a number of issues,” they wrote. “But on this we agree: Elections should be decided by the voters. Under the current system, politicians devise maps that make some votes count more than others. They rig the system with impunity.”
Policy Watch’s Melissa Boughton will be in Washington D.C. to report on tomorrow’s arguments and all things North Carolina gerrymandering. Follow her on Twitter @mel_bough.