In the next two months, the Supreme Court will issue decisions in two cases that have important political implications.
At the end of March, the justices heard oral arguments in a case about the constitutionality of North Carolina’s congressional district map. In the November 2018 midterm elections, Democratic House candidates in North Carolina won 50 percent of all the votes cast for House candidates throughout the state, their best showing in almost a decade. Yet Democrats won only 3 of the 13 House seats, the same number they won in the more Republican years of 2014 and 2016.
Legislative Republicans in North Carolina drew the district lines to provide a substantial advantage to their party’s candidates. The case before the Supreme Court asks the justices to decide whether partisan political gerrymandering is a violation of several provisions of the Constitution: Article I, on the election of the House; the First Amendment, on freedom of speech; and the Fourteenth Amendment’s Equal Protection Clause.
To date, the Supreme Court has overturned state legislative and congressional district maps for only two reasons: the populations of the districts were not equal, and thus violated the Court’s one-person, one-vote standard, or the district lines that were drawn were motivated by discrimination against African-American and/or Latino voters. The Court has never rejected a map for reasons of partisan gerrymandering.
A few justices have been seriously interested in the claim that gerrymandered districts violate the constitutional rights of voters who are in the political minority. However, these justices never made up a majority of the court. One of these justices was Anthony Kennedy, who retired last year. Many observers believe that the only way the challengers to the North Carolina district map could now get a Supreme Court ruling in their favor would be for Chief Justice John Roberts, most unexpectedly, to change his position on whether or not partisan gerrymandering is a constitutional violation.
If the justices uphold the North Carolina congressional map, those challenging gerrymandered districts will have to pursue other strategies in the next few years to prevent a new set of gerrymandered maps from being drawn using 2020 census results, for elections in 2022 and beyond.
The first is electing Democratic governors in states such as North Carolina, who might be able to veto Republican-drawn maps. The second is, if the state constitution permits, passing a referendum taking the power of drawing legislative district lines away from state legislators and giving it to an independent commission. This step has already been taken by voters in Colorado, Michigan and Utah, all of whom passed measures in November 2018 to establish redistricting commissions for the maps to go into effect in 2022.
Whether redistricting is done by legislators or by commissions, the process depends on accurate data from the census about the number and residence of the population. The outcome of another Supreme Court case, heard last week, could affect the accuracy of the results from the 2020 census.
The case involves the decision of Secretary of Commerce Wilbur Ross, whose department oversees the census, to add a question to all census forms regarding the citizenship of respondents. The question was added as part of the Trump Administration’s larger nativist agenda. New York state and other plaintiffs argue that the Commerce Department did not follow proper administrative procedure in adding the question, and that, in so doing, they prioritized the citizenship question over the main purpose of the census, to obtain an accurate count of the population.
After last week’s argument, the five Republican-appointed justices appear ready to uphold the citizenship question. Demographic experts believe the effect of adding this question will be to depress participation in the census. If so, states and metropolitan areas with large immigrant populations may end up with fewer representatives in state legislatures and in Congress than if the census results were more accurate.
Eric L. Davis is professor emeritus of political science at Middlebury College.