Gerrymandering: State Court Review?

When the Supreme Court ruled last summer that political gerrymandering was not justiciable in federal court, Chief Justice Roberts proposed four alternative routes for pursuing fair maps:

  • Voter initiatives
  • State legislatures
  • Congress
  • State courts

The state court route was pursued in 2018 in Pennsylvania and, more recently, this past summer in North Carolina. In Pennsylvania, the state supreme court declared that the state’s Congressional district maps violated the state constitution’s requirement that elections be “free and fair.” New maps, drawn by a “special master” appointed by the courts and implemented in time for the 2018 elections resulted in nine Republican seats (44.75% of votes) and nine Democratic seats 55.03% of votes), compared to 13 Republican (53.91%) and five Democratic seats (45.70%) in the 2016 election.

The North Carolina case is still being pursued, but here’s a brief recap of developments from this past summer and fall. A state district court concluded that partisan gerrymandering violates the North Carolina’s constitution’s requirement that “[a]ll elections shall be free.” In September, the court found the state legislative and senate maps (drawn by the Republican-dominated legislature) unconstitutional and required the legislature and senate to redraw their maps in a manner that was open to public scrutiny. Those maps were redrawn in open sessions of the two houses and submitted for review in mid-September. At the end of October, the court finally accepted the revised legislative and senate maps but demanded new Congressional maps.

In North Carolina’s 2018 Congressional election, Republicans won 10 seats with 50.39% of the vote and Democrats won three with 48.35% of the vote. One Republican legislator famously opined that his proposed map produced 10 Republican and three Democratic seats because he did “not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In November, the legislature passed a set of revised maps and submitted them for review by the court, but opponents expect to oppose the maps, claiming they still represent a Republican partisan gerrymander. A ruling is due December 2, and if the revised maps are not approved, the March primary election could be postponed.

In South Carolina, efforts are underway to get a legislative solution to the problem of partisan gerrymandering. There are now multiple bills that would implement some form of independent redistricting commission and/or set standards for fair maps. But the 2020 legislative session represents the last opportunity to implement a legislative solution before the 2020 Census results are published and new maps are drawn in 2021 that will stand for another decade. If the legislative effort fails, does South Carolina have a judicial recourse?

Article I, Section 5 of South Carolina’s constitution states

Elections, Free and Open

All elections shall be free and open, and every inhabitant of this State possessing the qualifications provided for in this Constitution shall have an equal right to elect officers and be elected to fill public office.

South Carolina Constitution, Article I, Section 5

That language is similar to the language in other states that state courts have relied on in declaring partisan gerrymandering unconstitutional. Interpretation of the constitution is up to judges in each state, however. There is no certainty that South Carolina judges would follow other state courts’ precedents, although having multiple state courts in agreement would add weight to that interpretation. Even if the court agreed on the principle, it would then have to find that the actual maps were, in fact, gerrymandered. South Carolina’s current maps, drawn in 2010, were subject to “pre-clearance” under a provision of the Voting Rights Act that the Supreme Court voided in 2013. Because racial and partisan gerrymandering are often correlated, it is possible that the current maps would not appear to be as extreme as those in other states. The new maps will not be pre-cleared, so there’s no telling how they will turn out until the process runs its course.

LWVSC hopes to avoid the need to pursue this path. We will be looking to all of you to help out. Watch this space.

Published by Matthew Saltzman, Ph.D.

Associate Professor of Mathematical and Statistical Sciences, Clemson University. President, the COIN-OR Foundation, Inc. Director for Redistricting, League of Women Voters of South Carolina

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