Partisan gerrymandering goes to the Supreme Court, and North Carolina will take center stage.
Democrats sued over maps drawn (and re-drawn) by Republicans in the NC General Assembly, arguing that the GOP drew Congressional districts that were so lopsided against Democrats that they were unconstitutional.
Federal district court judges from the Middle District of North Carolina invalidated the map after voters and related groups claimed that the new district map violated voters’ rights under the First Amendment, the Equal Protection Clause, and the Elections Clause. As part of this ruling, the lower court determined that there was an injury sufficient to give the voters standing while also holding that the issue of partisan gerrymandering is not barred from judicial review by the political question doctrine. The case was then appealed directly to the Supreme Court, which will seek to answer the procedural and substantive questions while wrestling with a large body of competing jurisprudence. The decision could potentially open the courts to additional challenges by voters in several states and have implications for the scope of lawful electoral redistricting.
As Lyle Denniston writes at the National Constitution Center, the court is looking for an objective standard so as to avoid the subjective one:
And it thus is not out of the question that [Brett Kavanaugh] and four other conservative Justices would wind up as a majority to say that there can be no constitutional measure that would work, or else to fashion a test so deferential to political options as to leave the practice unchallengeable as a real-world matter.
The Court has been asked directly, in the first of the two new cases (a case from North Carolina), to rule that there is no role for courts to play in overseeing partisan gerrymandering because there simply cannot be a workable formula for judging its validity. A workable formula, of course, is exactly what has eluded the Court since its first partisan gerrymandering decision in 1973.
North Carolina has spent decades embroiled in redistricting litigation, and the high court has been incapable of handing down consistently-applicable standards, leading to more litigation. Two of the Republicans who drew the maps wrote a piece at The Atlantic explaining this frustration:
The Voting Rights Act prescribes a remedy for states where the preferred candidates of minority voters cannot win because non-minority voters overwhelmingly choose a different candidate. The remedy is to draw electoral districts with more minority voters than non-minority voters—“majority-minority” districts.
So that’s what we did. We drew majority-minority districts, all but ensuring that minority-preferred candidates would win those seats. Why? Because that’s what the Voting Rights Act required.
In fact, the U.S. Supreme Court affirmed that interpretation just two years before we drew the maps. “Only when a geographically compact group of minority voters could form a majority in a single-member district” has the Court’s criteria been met, Justice Anthony Kennedy wrote for the majority. We also precleared our maps with the U.S. Department of Justice, led at the time by Eric Holder, which approved them.
But we still lost the case. That’s because Judge Gregory reasoned that, despite the evidence we produced, racially polarized voting in North Carolina wasn’t bad enough to require the majority-minority districts that we drew. Indeed, a judge from the same court wrote, “I find nothing flagrant or nefarious as to the legislature’s efforts here.”
But the court also wrote that the maps would have been acceptable if “politics, not race, was the driving factor.” It ruled the maps unconstitutional only because “the Court is not persuaded that the redistricting was purely a politically driven affair.”
Federal courts, including the Supreme Court, have long held that political considerations are fair game, and maps produced on the basis of those considerations are perfectly legal.
Meanwhile, Democrats are applying pressure to Chief Justice John Roberts - warning him in completely apolitical altruistic op-eds that if he doesn't side with the leftists on the bench, then they'll never be able to trust his judgement again. UC-Irvine professor Richard Hansen makes this argument at Slate.com:
This time, following the departure of swing Justice Anthony Kennedy, Roberts could well be the only one in a position to stop a pattern in which all the Republican-appointed judges side with perceived Republican interests and all the Democratic-appointed judges side with perceived Democratic interests.
On the one hand, the conservative Roberts will get to see more of his preferences become part of American law. But the price that may be paid will be Democrats increasingly looking at a Republican Supreme Court doing the party’s bidding.
A Roberts vote to strike down partisan gerrymandering and to block a citizenship census question might be some ammunition against such claims in the term—and the years—to come. He can show in these cases that he is above politics, and then call the “balls and strikes” in the cases to come next term exactly as he’d like them to be.
Naturally, this argument is never used to nudge leftists towards originalism or interpretivism. It's solely employed to pressure Republican-appointed judges to abandon their principles and judicial philosophy to side with Democrats, under threat of losing favor.
Retired Justice Anthony Kennedy was notorious among conservatives for caving to progressives.
He was lavished with leftist praise when did. (All of which was promptly forgotten when he retired and progressives savaged him for giving Trump another Supreme Court appointment.)