John Davis Consulting

Today US Supreme Court Rules on Constitutionality of North Carolina Partisan Gerrymandering

June 27, 2019       Vol. XII, No. 6         6:13 am

Will time-honored right to partisan gerrymandering be overturned?

At 10 am this morning, Thursday, June 27, 2019, the US Supreme Court will rule on the constitutionality of partisan gerrymandering in North Carolina. The case, Rucho v. Common Cause, is one of the five final decisions of the term which began the first Monday of October 2018.

Rucho v. Common Cause has the potential of becoming one the most politically disruptive Supreme Court decisions in history. It stands to either affirm or overturn the time-honored right of the majority party in the state legislature to draw maps that favor the election of their party’s candidates.

Historically, unlike maps that discriminate against voters based on race, the US Supreme Court has ruled that maps that discriminate as to one party’s political advantage over another political party are okay. The authority to draw maps to your partisan advantage is simply one of the spoils of state legislative political warfare. If you want to draw the maps, then you must win the majority of legislative seats every 10 years at the time of redistricting.

Bottom line: American voters have never had a constitutional right of equality of partisan power. Restated for emphasis: Democratic and Republican voters have no constitutional right as a group to legislative and congressional district maps that give their party an equal chance to win an election.

That’s why I noted that today’s Rucho v. Common Cause decision could be one of the most politically disruptive Supreme Court decisions in history. If the court rules that partisan gerrymandering is unconstitutional, it will overturn America’s winner-take-all system of two-party governance.

American politics is a winner-take-all system

American politics is a winner-take-all system. If your party wins the majority of the seats in a legislative chamber, even by only one seat, you get 100% of the committee chairs. You get to make the rules. Stack the committees so your bills get heard and your opponent’s bills get buried.

There is no such thing as a constitutional requirement for proportional representation in any of the three branches of state government based on the partisan share of the electorate. The state may be divided right down the middle with an equal number of Republicans and Democrats, but if you win the governor’s race by only 1 vote, you still win 100% of the power vested in the office of governor.

Governor Roy Cooper, a Democrat, has the constitutional right to select loyal Democrats in 100% of his staff positions. All of his appointments to state boards and commissions can be loyal Democrats. All of his judicial appointments may be loyal Democrats.

The North Carolina Supreme Court is now a 6-1 Democratic majority thanks to two Democratic justices appointed by Governor Cooper. Appointing Democratic justices to fill unexpired terms is Gov. Cooper’s prerogative. Republican governors have exercised the same prerogative.

It is because of America’s time-honored, winner-take-all political system that I believe the court is more likely to uphold the right of the majority party to gerrymander congressional and legislative districts to their party’s advantage.

Further, my sense is that the US Supreme Court is getting weary of the clutter of politically motivated partisan gerrymandering cases every 10 years and will rule that those claims are no longer a matter for the federal courts. That means the individual states will have the exclusive responsibility for the determination of the fairness of partisan gerrymandering in their state.

According to the National Conference of State Legislators, seven states have a commission with the primary responsibility for drawing congressional maps. Other states have advisory commissions. In most states, the party in power in the legislature at the time of redistricting still draws the maps.

I’m betting on a decision today that upholds partisan gerrymandering as one of the spoils of partisan political warfare. A decision that also concludes that any remedy to issues of partisan unfairness in mapmaking should be addressed by the states, not the federal courts.

We shall soon see.

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John N. Davis

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