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You Have the Right to Vote – in a Gerrymandered Districtby Andrew Whiteman

Justice Word Engraved

The Supreme Court today reversed lower court decisions from North Carolina and Maryland that held partisan gerrymandering of congressional election districts is unconstitutional. The New York Times report is here. Better yet, read the Court’s opinion here.

This decision is thoroughly depressing. The message is that the political hacks in control of state legislatures may arrange the voting districts to ensure that they remain in power. This is a sad day for democracy. The Supreme Court completely abdicated its constitutional oversight responsibility. What are we left with? The right to vote in a rigged election. Why bother?

This decision affects only challenges to politically-gerrymandered voting districts brought under the United States Constitution. The Court stated that the federal courts may continue to consider challenges based on inequality of population among voting districts – on equal protection grounds – and based on claims of racial gerrymandering – also on equal protection grounds. Chief Justice Roberts’ explanation as to why the federal courts are fully capable of remedying racial gerrymandering but not partisan gerrymandering is unconvincing:

Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.

With all due respect, the plaintiffs did not ask for the elimination of partisanship but rather sought the elimination of partisanship in the drawing of Congressional districts. If the courts are able to redraw districts to remedy racial gerrymandering, they should be able to remedy partisan gerrymandering. Justice Kagan’s dissent is compelling.

The Court’s decision does not affect challenges to the drawing of state legislative voting district on state statutory and constitutional grounds. Justice Roberts wrote that “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”

In North Carolina, the non-profit Common Cause filed suit on November 13, 2018 in Wake County Superior Court to challenge the voting districts for the North Carolina legislature on state constitutional grounds. The pleadings in Common Cause v. Lewis may be found here. The case is scheduled to go to trial on July 15, 2019.








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