The Infuriating Logic of the Gerrymandering Decision

Wed., Jan. 12: Of course Republicans gerrymandered, but—shrug—what can you do?

» Court Says Dems Are Right About Gerrymandering, Backs Republicans Anyway

In their 260-page ruling yesterday, the three-judge panel of the Wake County Superior Court tasked with assessing the constitutionality of the Republicans’ newly drawn congressional and legislative districts—two Republicans, one conservative Democrat, all white, and all selected by Republican Chief Justice Paul Newby—said the following:

• “The Court finds, based upon [Duke mathematics professor Dr. Jonathan Mattingly’s] analysis, that the Congressional map is the product of intentional, pro-Republican partisan redistricting. The enacted map sticks at 4 Democrats and 10 Republicans despite large shifts in the statewide vote fraction across a wide variety of elections, in elections where no nonpartisan map would elect as few as 4 Democrats and many would elect 7 or 8. The Congressional map is ‘an extreme outlier’ that is ‘highly non-responsive to the changing opinion of the electorate.’”

• The Court finds, based upon Dr. Mattingly’s analysis, that the State House and Senate plans are extreme outliers that ‘systematically favor the Republican Party to an extent which is rarely, if ever, seen in the non-partisan collection of maps.’”

• “The Court finds that cracking Democrats from the more competitive districts and packing them into the most heavily Republican and heavily Democratic districts is the key signature of intentional partisan redistricting and it is responsible for the enacted congressional plan’s non-responsiveness when more voters favor Democratic candidates.”

• “[Dr. Wesley Pegden, an associate mathematics professor at Carnegie Mellon University], found, and the Court so finds, that the enacted congressional plan is more favorable to Republicans than 99.9999% of the comparison maps his algorithm generated by making small random changes to the enacted plans. And based on these results, Dr. Pegden’s theorems prove, and the Court so finds, that the enacted congressional map is more carefully crafted to favor Republicans than at least 99.9999% of all possible maps of North Carolina satisfying the nonpartisan constraints imposed in his algorithm.”

• “The 2020 vote for Chief Justice of the North Carolina Supreme Court resulted in a virtual tie, with the Republican candidate winning by 401 votes. The Enacted Plans would have converted that near tie at the ballot box into a resounding Republican victory in seat share across the board: Republicans would have won 10 (71%) of North Carolina’s congressional districts, 28 (56%) of North Carolina’s Senate districts, and 68 (57%) of North Carolina’s House districts. … Under this analysis, the Court finds that in every single one of the 52 elections decided within a 6-point margin, the Enacted Plans give Republicans an outright majority in the state’s congressional delegation, the State House, and the State Senate.”

• “The Enacted Plans resiliently safeguard electoral advantage for Republican candidates. This skewed result is not an inevitable feature of North Carolina’s political geography.”

• “The Court agrees with the findings of each of these experts and finds that the 2021 Congressional Plan is an intentional, and effective, pro-Republican partisan redistricting.”

• “The chosen cluster is the choice that favors the Republican Party and significantly fractures Black voters in that area.”

It goes on like this for more than a hundred pages—example after example of bright-line cases in which Republicans quite obviously contorted the maps to benefit themselves. Eventually, the judges get to my favorite line in the entire ruling.

• “Legislative Defendants offered no defense of the 2021 Congressional Plan. No expert witness opined that it was not the product of an intentional partisan redistricting.”

In other words: They did it, of course they did it, they’re not even pretending they didn’t. Also, tough shit.

The judges spent the last third of its tome explaining in exhaustive—and often meandering—detail why, even though the plaintiffs had proven their case and were clearly right on the facts, they wouldn’t get in the way of the General Assembly’s Republicans selecting their own voters, even though “judges, just like many of the citizens they serve, do not always like the results they reach.”

The gist is this:

• In Ye Olden Times—1968—voters approved constitutional amendments that gave the General Assembly control over the maps. They did not grant the governor veto power (not that they were asked).

• The General Assembly has never forbidden itself from drawing legislative districts that benefit its own members.

• Congress hasn’t blocked them from doing so, either: “Congress’ inaction has left the Equal Protection Clauses in both our State and Federal Constitution as they relate to racial gerrymandering, the Voting Rights Act of 1965, and the one person one vote requirement … as the only constraints placed on our General Assembly in the drawing of congressional districts.”

• The state Supreme Court has said that partisan gerrymandering is fine, so long as it’s “in conformity with the State Constitution.” But it’s not clear what that means. And in 2019, the U.S. Supreme Court said (in Dickson v. Rucho, a case originating in North Carolina, naturally) the question of when political gerrymandering became “extreme” was too difficult to decide.

• In 2019, a three-judge panel found that the legislature’s maps were extreme gerrymanders under the state constitution, though the General Assembly never asked the state Supreme Court to review that decision. That ruling, this three-judge panel said, was “instructive and persuasive,” but not “binding.”

• And they ruled that while the maps would likely disadvantage Black voters, the plaintiffs hadn’t proven that legislators had racial motivations. (They also chided the plaintiffs for not bringing a claim under the Voting Rights Act, which would have rendered intent moot.)

To wriggle out of the experts’ damning math, the court engaged in some Mr. Smith Goes to Washington nostalgia.

Many of the opinions of the experts at trial were informed by either the vote share of a party on a single or aggregated statewide race or races. … These races do not take into account the individual needs and issues that are important to each of the 170 legislative districts and 14 congressional districts at issue. They also treat the candidates as inanimate objects in that they do not consider the personality or qualifications of each candidate, any political baggage each candidate may carry, as well as a host of other considerations that voters use to select a candidate. Moreover, these opinions assume that voters will vote along party lines. Testimony of the experts that by considering many statewide races across a significant period of time somehow washes these considerations out is not persuasive. In effect, they believe the computer can take the human element out of the human. That is a process we doubt they can do and hope will never happen.

Sure, people aren’t machines, and not everyone always votes the party line, which is how the state elected both Donald Trump and Roy Cooper in 2020. But increasingly, this is an age of ultrapolarization, where, to flip Tip O’Neill on his head, all politics are becoming national. That’s how Madison Cawthown can be a GOP star despite never accomplishing a thing for his own district.

• Polarization worsens when local newspapers close, but that’s a subject for another day.

• Point is: Wide-eyed nostalgia for nonpartisan voters whose independence renders gerrymandering’s worst effects moot betrays wishful thinking more than anything else.

Ultimately, their ruling says that while extreme partisan gerrymandering is unconstitutional, since they can’t define it, the General Assembly can do whatever it wants. They then employed the same copout Chief Justice John Roberts used in Rucho, only—taken at face value—it’s more naive here.

In Rucho, the U.S. Supreme Court pointed to examples of how the States are specifically addressing the issue and how statutes and constitutions can provide standards and guidance for the state courts to apply. In Florida, the Fair Districts Amendment to the Florida Constitution was adopted in 2010 and specifically provides that in creating congressional or legislative districts ‘[n]o apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent . . . .’ In Michigan, the state constitution was amended in 2018 to provide for an independent citizens redistricting commission. Missouri has added language to its constitution that requires that ‘[d]istricts be drawn in a manner that achieves both partisan fairness, and secondarily, competitiveness. . . .’ Other states identified by the Supreme Court, Iowa and Delaware, have elected to address the issue through their state statutes. All of the states identified and the manner in which they are addressing the problem have one thing in common: the problem was addressed by the people, their legislatures, or both—not the judiciary.

Florida, Michigan, and Missouri have voter-initiated referenda to amend their state constitutions—which is how their voters pushed through reforms over legislative Republicans’ objections. North Carolina does not.

Here, the legislature controls redistricting completely.

• The governor is impotent.

• So are voters. They can’t put an anti-gerrymandering amendment on the ballot, and once the General Assembly picks its own voters, it’s all but impossible for voters to change the composition of the General Assembly as payback.

• Now, these judges say, courts have to sit on the sidelines and wait for the Democracy Fairy Godmother to sprinkle pixie dust on Phil Berger.

While we’re on the subject:

• Once they got control of the state Supreme Court, Florida Republicans simply ignored that amendment.

• After losing their ability to gerrymander in 2018, Missouri legislators placed an amendment on the 2020 ballot—which prevailed 51–49—to hand over control of the process from a nonpartisan state demographer to a bipartisan commission appointed by the (Republican) governor.

• Last year in Iowa, long a model for reform, Republican lawmakers rejected the nonpartisan Legislative Services Agency’s maps and drew their own.

Under the court’s reasoning, voters have no option but to shut up and take it. And just because the General Assembly has rendered their votes meaningless, too bad.

• “Redistricting and the political considerations that are part of that process do not impinge on the right to vote. Nothing about redistricting affects a person’s right to cast a vote.”

• “Despite our disdain for having to deal with issues that potentially lead to results incompatible with democratic principles and subject our State to ridicule, this Court must remind itself that these maps are the result of a democratic process.”

EXCUSE ME.

Republicans won North Carolina by a couple of points in 2020, which, even under court-supervised maps, gave General Assembly Republicans an outsize majority. They then used that majority—their unchecked power—to craft an extreme gerrymander that will secure that power for a decade or longer.

• That’s what we’re calling a democratic process now.

This isn’t an easy question, and if you squint just so, you can construe the ruling as the judges asking the state Supreme Court to hand down guidelines for what constitutes an extreme gerrymander.

• I don’t really think that’s the case.

• Either way, the plaintiffs are appealing, so the Democratic Supreme Court will get a crack at it soon enough.

What’s clear to me: This problem won’t go away until we take redistricting out of the hands of interested parties, no matter which party is running the show.

If the NCGOP wants to prove it has a popular mandate, there’s a simple solution:

• Place a constitutional amendment on the November ballot to create an independent, nonpartisan redistricting commission, watch it pass with ~70% of the vote, then allow that commission to oversee new congressional and legislative districts ahead of 2024.

• Ideally, the districts would be drawn by algorithms crafted by one or more of the election-math experts North Carolina apparently grows on trees, with minimal guidance from humans on the commission and none at all from the NCGA (or any other politician), beyond appointing the commission members.

• After that, if Republicans end up with 9 or 10 congressional seats and near-supermajorities in the NCGA, great! That’s democracy.

• If the state is split more or less down the middle, however—which, let’s be real, we all know is what fair districts would produce most of the time—wouldn’t that better reflect the will of the people?

• And since most Black and Hispanic voters live in urban areas, wouldn’t fairer districts be more likely to ensure that they are adequately represented in Congress and the NCGA?

That Republicans would never consider anything like that is both obvious—strategically, few things could be dumber—and a tacit admission that their power derives from a cocktail of geography and bad faith.

Their best defense for this affront to democracy is that Democrats did it, too.

• Democrats did. If nothing changes, they’ll do it again if and when they regain power. That’s how politics works. The “good government” team has almost always drawn the short straw. Just a coincidence, surely.

• In the meantime, if the best we can do is throw up our hands and say that the General Assembly has an absolute, unassailable right to gerrymander itself into power indefinitely, then this state’s democratic institutions are—pardon my language—well and truly fucked.