In 2010, low voter turnout among young people, minorities, Democrats, and independents led to massive Republican victories. The GOP gained six Senate seats, took control of the House, and won 20 state legislative chambers formerly held by Democrats.. Because it was a census year, Republican State Houses then designed new Congressional districts. In the 2012 elections, Democrats won 1.4 million more votes in House of Representatives races than Republicans, but Republicans came out with a 33-seat advantage over the Democrats.
Gerrymandering is the act of drawing representative districts to win elections. Often, it involves packing minority-party voters into a small number of districts so majority-party voters are spread out across districts they can win. In the wake of the 2010 election, unprecedented gerrymandering was unleashed across the country, but most blatantly in North Carolina, Wisconsin, Pennsylvania, Michigan, and Arizona. Computer modeling has designed intricate shapes that link Democratic communities and cities to keep them out of competitive races more effectively than ever before. Gerrymandered districts often take the forms of thin, jagged strips linking urban areas or minority communities. One of the most famous is Pennsylvania’s seventh, jokingly nicknamed “Goofy Kicking Donald Duck.”
North Carolina is a crucial case study in modern gerrymandering. Arguably the most gerrymandered state in the country, it has been fighting a steady stream of challenges in the court system alleging a variety of attempts to secure partisan gains by making it harder to vote and making those votes matter less. These allegations are valid, and are the frontline of the modern war to preserve democracy. Understanding the legislature’s actions, particularly redistricting, and how they have been fought is essential to ensuring free and fair elections.
Cooper v. Harris (2017)
North Carolina’s most blatant attacks on voters have come in the form of racial gerrymanders. This is a complicated issue: There are some specific conditions in which race is allowed to be considered in redistricting. The Voting Rights Act stipulates that districts can be drawn to contain large numbers of minority voters if that is necessary for those minorities to elect their preferred candidates. For example, in a ruling on Arizona districts, the Supreme Court ruled unanimously that districts upheld the Voting Rights Act because they consolidated minority voters enough for them to secure the representation they desired. However, the Court unanimously overturned North Carolina’s first congressional district because it was redrawn to deliberately include more minority voters, even though those voters were previously able to elect their preferred candidates.
Furthermore, in Cooper v. Harris, the Court ruled that minority voters can only be drawn into districts on the basis of race if it is necessary for fair representation. Justice Elena Kagan’s majority opinion also qualified that race cannot be the predominant factor in drawing districts. As such, the Court overturned North Carolina’s twelfth Congressional district in spite of arguments that it was a partisan gerrymander, not a racial one, writing, “The sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”
Many court spectators were confused by the fact that Thomas, arguably the most conservative justice on the court, joined the so-called “liberal wing” of the court to form a 5-3 majority. However, a closer look at Justice Thomas’s writings shows how his positions, while conservative, are distinct from the other conservatives’ positions on race. Throughout his time on the bench, he has largely opposed racial considerations in the law on issues from affirmative action to Confederate license plates, no matter whether the considerations designed to undermine or seek justice for racial minorities. In a partial dissent to a decision on racial gerrymandering in Virginia, he wrote, “I cannot ignore the Constitution’s clear prohibition on state-sponsored race discrimination.”
Justice Samuel Alito wrote the Court’s dissent in the Cooper v. Harris case. First, he disagreed with the majority finding that race was the predominant factor in drawing districts. Because an overwhelming majority of African Americans register as or vote for Democrats, he felt the gerrymander could have been partisan and legal rather than racial and illegal, and he opposed opening the door to overturning gerrymanders with partisan basis, writing, “If the majority party draws districts to favor itself, the minority party can deny the majority its political victory by prevailing on a racial gerrymandering claim.” This language demonstrates the belief that lawmakers are justly entitled to dilute their constituents’ voting power as they see fit through redistricting. Justice Alito believes that neither the equal protection clause nor the freedom of association under the First Amendment protects voters from being deliberately drawn into districts where their votes are almost meaningless so that their government does not accurately reflect their views.
He also cited a 2001 case, also over the possibility of unlawful racial gerrymandering in North Carolina’s twelfth congressional district, in which the challengers lost, in part, because they failed to provide a map showing how the legislature could achieve partisan gain without illegal racial discrimination. The majority opinion disregarded this precedent because it held that partisanship is no excuse for racial gerrymandering, a sign that the Court is becoming less forgiving of gerrymandering as the practice becomes increasingly extreme.
The Future of Redistricting
While many have celebrated Cooper v. Harris as a substantial victory, there are reasons to reign in optimism. The Supreme Court also struck down 28 of North Carolina’s state legislative districts in June as racial gerrymanders, and the legislature was ordered to draw a new map. However, Todd Barlow, chief of staff to the state house minority leader, told the HPR that partisan gerrymandering “was the major drafting force behind the [new] map.” The sponsor of the redistricting bill, Representative Dave Lewis, even said on the floor that Republicans drew a map that favored 10 Republicans and three Democrats only because they couldn’t draw one that favored 11 Republicans and two Democrats. His policy advisor, Mark Coggins, maintained, in an interview with the HPR, that the districts were drawn “in good faith.” The Supreme Court’s decisions do not seem to have stopped the legislature’s gerrymandering.
Battle on Other Fronts
The most salient lesson from Cooper v. Harris is that no court decision will give justice to voters. The courts are crucial, of course: courts are the only way to fairness because you’re never going to get truly fair legislation out of a gerrymandered legislature noted Professor Charles Fried of Harvard Law School in an interview with the HPR. However, North Carolina’s legislature has remained the site of unparalleled partisan malpractice, even after Cooper v. Harris. This is because racial gerrymandering is just one front in the war over voting rights. The two legislative coups, attack on voting rights, and unnecessary voting hurdles that accompany the substantial remaining gerrymanders prove that barriers to justice remain for North Carolina voters.
For instance, in North Carolina, Republican lawmakers have taken steps to remake the state’s judiciary in response to the legal setbacks they have experienced. State judicial elections are now partisan, and the judicial districts are being gerrymandered, pitting incumbent judges of color against each other and creating more majority white districts. Coggins argued that “the current map hasn’t been touched in over 60 years and is in desperate need of an update in order to balance population and case load data.” The legislature even shrunk the state court of appeals to deny Democratic Governor Roy Cooper the opportunity to replace retiring judges. This extreme manipulation of the judiciary comes shortly after the legislature tried to take significant powers from the executive branch, only to be stopped by the courts. Barlow characterized it as “an attempt to show the judges who’s boss, and a direct response to the losses they’ve had in court and the perception that more losses are coming.” In the process, the legislature showed a dangerous and sinister disrespect for the voters’ will, constitutional limits, and the separation of powers.
Despite the widespread assault on our democracy that gerrymandering poses, there have been a multitude of successful court challenges protecting voting rights in the face of these attacks. Barlow said that there is hope for electoral punishment for the perpetrators of gerrymandering. He pointed to the 2016 state supreme court election, where the issue of gerrymandering played prominently in the electoral loss of an incumbent Republican justice and a shift in the court’s partisan alignment. “People are sick of it.”
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