The Republican Party developed a national strategy to seize and hold legislative power, and in North Carolina executed it with relentless precision. Six years into that process, however, the adverse legal judgments are beginning to accumulate.
Rights were violated and votes were suppressed, or targeted for suppression. The scheme may have seemed brilliant in its initial success, but that success has involved abuses of principles that are fundamental to our democratic system.
Racial discrimination in the form of gerrymandering – the shaping of election districts to yield an unfair advantage, thereby infringing on the rights of minority voters – earlier this year was found by the federal courts to have infected North Carolina’s congressional districts as drawn by the Republican-controlled General Assembly. In response, legislators drew new maps that themselves are being challenged by voting rights advocates.
Now, in the latest twist, the legislature’s shaping of districts where its own members are elected has likewise been invalidated by federal judges. An Aug. 7 ruling by a three-judge U.S. District Court panel concluded that of the 170 state House and Senate districts, 23 were fashioned in such a way that African-American voters were deprived of their right to equal protection under the law – in other words, of their right to have a fair and equal say at the ballot box.
The judges declined to order that the maps be redrawn before the elections to be held in November, saying that such a process would be too disruptive. But they ordered the legislature – which of course may appeal — to come up with new, non-gerrymandered maps when it convenes next year.
As it happens, just days earlier the nonpartisan government reform group Common Cause, along with the N.C. Democratic Party, went to court in an effort to show just how egregiously North Carolina’s Republican leaders have overplayed their hand.
A federal lawsuit filed by Common Cause and the Democrats seeks to hold top legislators accountable for shaping congressional districts in such a way that Democratic voters are unfairly penalized.
At the core of the suit’s argument is that districts drawn by legislative Republicans should be declared invalid because they amount to an overtly partisan gerrymander, violating Democrats’ rights of free speech and association.
Even while acting in concert with the Democrats in this case, Common Cause emphasizes its long-standing opposition to gerrymandering in all forms, no matter which party the tactic is intended to benefit. In North Carolina and elsewhere, both Democrats and Republicans have played the game when they’ve had a chance.
Yet Republican efforts of recent years have taken the game to a new level. Party strategists realized a golden opportunity in 2010, when legislative elections would occur against the backdrop of severe recession and partisan pushback against President Obama’s first-term agenda, including health care reform.
They knew that by capturing legislative majorities, they’d be able to control the realignment of congressional and legislative district boundaries to reflect the every-10-years national census that was conducted that year.
The swing of things
Sure enough, in 2010 Republicans won control of the North Carolina House and Senate for the first time in more than a century. In 2011, they engineered a set of congressional district maps that in the elections of 2012 helped them swing the state’s U.S. House delegation from seven Democrats, six Republicans to four Democrats, nine Republicans – even while Democratic candidates received 51 percent of all the votes cast.
In 2014, the pattern became even more skewed. The Common Cause lawsuit lays out the numbers: While Democratic congressional candidates were garnering 44 percent of the total vote, they won only three seats, compared with 10 taken by the GOP.
Voting rights advocates weren’t amused. They challenged the congressional districts as having been gerrymandered on the basis of race.
A federal court agreed that two of the 13 districts had been fashioned so as to include disproportionately large numbers of African-American voters – a “packing” technique that limits those voters’ overall influence. It was no coincidence that this racial gerrymander, which is how the court defined it, worked against Democratic candidates.
With a campaign season already under way, the legislature convened a special session in February to revise the congressional maps. What it came up with was a major reset.
Common Cause’s lawsuit maintains, essentially, that Republican leaders were too clever by half. Their new district plan was meant to inoculate them against charges of racial gerrymandering. But it focused even more explicitly on the districts’ partisan make-up.
Rep. David Lewis of Dunn, the House redistricting chair, was candid about the process – maybe too candid, Republicans now might say.
The lawsuit quotes Lewis’ explanation, well-reported at the time, that the new maps were designed to maintain the Republicans’ 10-3 edge in congressional seats.
Voters were sorted not on the basis of race but with an eye toward recent election results. So instead of racial packing, what occurred was packing on the basis of party. Three districts would be sacrificed to the Democrats, and Republicans would be odds-on favorites to claim the rest – despite the fact that Democrats hold a statewide lead in voter registration. (As of Aug. 6, there were 2,661,311 registered Democratic voters, 2,020,743 Republican, 28,471 Libertarian and 1,940,238 unaffiliated.)
Winners and losers
According to the lawsuit, the plan “violates the First Amendment by favoring some voters (e.g., Republican supporters of the party in power) and by burdening or penalizing other voters (e.g., Democratic voters) based on the content of the voters’ political expression or beliefs, their political party memberships or affiliations, or their voting histories in favor of a political party or its candidates.”
The U.S. Supreme Court has curled its collective lip, as it were, at redistricting schemes reeking of partisanship, but so far it has not articulated a standard for identifying an unconstitutional partisan gerrymander.
So long as legislatures, not independent commissions, are in charge of drawing district lines, partisan motives are destined to play a role. But what if that role is dominant or even exclusive, as Rep. Lewis seemed to suggest? Common Cause wants the courts to face the issue head-on and finally set that gerrymandering standard – with North Carolina’s current congressional districts being Exhibit A in how such a standard can be breached.
The overall Republican plan was 1) to gain control of state legislatures and 2) to draw election districts where they would have an advantage, allowing them to maintain power. In North Carolina and some other states, the party has tried to apply a clincher by limiting voting opportunities for citizens who tend to back Democratic candidates. Here, that meant a series of election law changes, including a strict photo ID rule, that the 4th U.S. Circuit Court of Appeals has declared were racially discriminatory.
The state is trying to have that ruling blocked. Now, with the legislative district maps having been declared unconstitutional and with the Common Cause lawsuit, it’s also again on the defensive with respect to its redistricting strategy.
We do have a competitive political system, and we should expect some elbows to be thrown. But those of us who want to make sure that system comports with constitutional standards of fairness – in the interest, especially, of protecting the rights of the vulnerable — can look forward to seeing our legislators have to answer some hard questions about their efforts via hyperpartisan redistricting to tilt the election scales.