Why the North Carolina redistricting ruling could end gerrymandering as we know it

Tuesday's ruling by a three-judge federal panel that the ...

Posted: Jan 11, 2018 7:13 AM
Updated: Jan 11, 2018 7:13 AM

Tuesday's ruling by a three-judge federal panel that the North Carolina congressional map is unconstitutional due to the fact that it was drawn primarily with political motives in mind is a BIG deal. It's the first time a federal court has struck down a congressional map due to a partisan gerrymander.

Why does that matter? I reached out to redistricting expert Justin Levitt, the associate dean for research at Loyola Law School in Los Angeles, for some answers. Our conversation, conducted via email and lightly edited for flow, is below.

Cillizza: The North Carolina ruling seems to make clear that political gerrymandering is unconstitutional. Is that a right reading?

Levitt: It makes clear that using the redistricting process to inflict partisan injury -- to use the tools of government to subordinate one party and entrench another -- is unconstitutional. It does not preclude all consideration of politics or even partisanship. But it does say that a legislature can't use levers of state power to try to artificially (and) durably relegate one political party to second-class status.

Cillizza: In the near term, what does North Carolina need to do to comply with the ruling? Are we talking about a totally different congressional map in advance of 2018?

Levitt: Well, the court said that they would have to redraw districts for 2018, yes. The court gave the legislature two weeks to come up with a new map. The court also said that it would engage a special master -- essentially, someone to assist the court -- to draw up an alternative, just in case the legislature didn't do the job or didn't do it correctly. But all of that anticipates a new map for the midterms, yes.

It's likely that North Carolina will try to get a stay of that ruling from the Supreme Court -- these cases go up on direct appeal to the Supreme Court, rather than through the normal appellate process. The court has issued stays like this before: in Wisconsin, in Texas and in another North Carolina matter.

And given the partisan gerrymandering cases before the court right now, if North Carolina asks for a stay, it'll be a little bit of a signal: if the court decides to press pause or lets the remedy go forward.

Cillizza: What could change the direction of the debate on partisan redistricting? Other courts cases pending?

Levitt: For sure. There are two now at the Supreme Court, one from Wisconsin and one from Maryland. There are also cases in Pennsylvania, including a case in state court under state law; Florida had a similar case under state law earlier this decade. There are also a number of citizens' ballot initiatives making the rounds -- it's not possible in every state, but where it's permitted, citizens have been pretty active in giving their own legislatures instructions. That's how the system changed in Arizona and California; that's how the rules were changed in Florida. And I know there are active campaigns in a few states right now that might still change the process before 2021.

Cillizza: This has implications well beyond NC. If partisan line-drawing can't be done, how do states approach the redistricting process come 2020 and 2021?

Levitt: Sure does. If this decision (or the decision in Wisconsin) holds, it will act as a brake on partisan frenzy in the process. Redistricting unilaterally controlled by one party (and the midterms will tell us a lot about where that's likely) will likely be a little more constrained. This decision (and the one in Wisconsin) are really about policing the boundaries of extreme partisan excess. If they hold, states will have to trim back from the worst extremes. It's a little like a diet: It doesn't cut partisanship out of the equation entirely, but means you can't go back for that fourth extra helping of dessert.

Cillizza: Finish this sentence: "The most important impact of this NC ruling for national politics is ____." Now, explain.

Levitt: In the immediate term, the impact is on NC congressional seats in 2018.

This case might lead to redrawing the congressional map before the midterms in a way more friendly to Democrats' efforts to make gains in the House.

In the longer term, (the impact is) the solidification of courts pushing back on legislatures abusing their authority. It's way too easy for legislators to conflate personal interest and party interest with public interest when their jobs are at stake: Representatives shouldn't be choosing their constituents to lock in partisan power against the normal electoral tides.

Courts are starting to recognize that: under state law, under federal law, in a bunch of different states. More generally, courts have been offering increasingly robust protections of voting rights, and other civil rights, of late. The third branch is making its voice felt, not least because the citizens seem increasingly fed up with the recent partisan extremes.

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