Stop the steal — the Republican steal

At the end of April, all five conservative justices on the North Carolina Supreme Court declared, “There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims. Courts are not intended to meddle in policy matters.” 

A year earlier, the Court, which then had four liberal and three conservative justices, rejected the same redistricting plan passed by the North Carolina General Assembly as a violation of the state’s constitution.

The efforts of the reconstituted court to downplay partisan gerrymandering, wrote Justice Anita Earls, in a passionate dissent, “do not erase its consequences…” And, indeed, the new maps drawn by the GOP-dominated state legislature are likely to give three or four more congressional seats to Republicans in 2024 (for a total of 10 or 11 of the 14 seats assigned to North Carolina following the 2020 census), in a state that regularly gives almost half its votes to Democrats and elected a Democratic governor.

In addition to indifference to precedent, the North Carolina decision turned a blind eye to the principle that in a democracy every voter has a right to substantially equal voting power. The court made it a lot more difficult to stop the steal – the real steal – the one that allows politicians to perpetuate themselves in power by choosing their voters.

Gerrymandering is at least as old as the United States. But in recent years, as political partisanship has intensified, and computer technology and data analysis make redistricting maps more precise and efficient, gerrymandering has been used more and more frequently, especially in legislatures controlled by Republicans.

Between 2010 and 2020, partisan bias in redistricting maps gave Republicans a net 16-17-seat advantage in the U.S. House of Representatives. In Pennsylvania, which usually gives Democrats a majority in statewide races, the GOP could count on 13 of 18 congressional seats. Gerrymandering played an even greater role in state legislatures: In 2018 Democrats won every statewide race in Wisconsin, and only 36 of 99 seats in the State Assembly.

In 2019, in a 5-4 decision in Ruchio v. Common Cause, the U.S. Supreme Court gave a green light to partisan gerrymandering, and provided a rationale for state courts to get out of the way. The case involved redistricting maps drawn by Republicans in North Carolina and Democrats in Maryland. Legislative intent was not in doubt. 

David Lewis, a Republican member of the North Carolina General Assembly, had boasted that he drew the map because “I think electing Republicans is better than electing Democrats.” Lewis gave “a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”

Fifteen years earlier, it’s worth noting, in a concurring opinion in a gerrymandering case, Supreme Court Justice Anthony Kennedy wrote, “If a state passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s right to fair and effective representation’… we would surely conclude the Constitution had been violated.” Kennedy retired in 2018, and was replaced by Brett Kavanaugh, who became part of the Ruchio majority.

Writing for that majority, Chief Justice John Roberts acknowledged that the North Carolina and Maryland maps were “highly partisan, by any measure”; excessive partisanship in districting “leads to results that reasonably seem unjust”; and the Court regularly reviews electoral districts for evidence of racial gerrymandering. 

Nonetheless, Roberts maintained, reallocating power between Republicans and Democrats presented “political questions beyond the reach of the federal courts…with no plausible grant of authority in the Constitution, and no legal standard to limit and direct their decisions.”

In essence, the Supreme Court decision authorized the foxes to guard the henhouse. A few legislatures, most of them in blue states, however, have reined in or eliminated partisan gerrymandering. Independent, bipartisan or nonpartisan commissions draw congressional maps in nine states — Arizona, California, Colorado, Hawaii, Idaho, Michigan, Montana, New Jersey and Washington. In two states – New York and Virginia – legislatures and commissions share authority over redistricting.

In New York, when the independent commission failed to reach a consensus in 2021, Democratic majorities in the state legislature, in part, no doubt, to offset the impact of gerrymandering in red states, passed a redistricting plan likely to produce at least three additional seats for their party in the U.S. House of Representatives. 

But in April 2022, putting principle above party, four judges of the New York State Court of Appeals, all of them appointed by Democratic governors, found that the maps violated the state constitution. The court appointed a special master to redraw them, with input from legislators and “any interested stakeholders,” and then approved his plan. In the 2022 midterms, Democrats lost four seats, and Republicans gained a slim majority in the House.

In 2021, when Democrats still commanded a majority in the House of Representatives, they passed HR 1, the “For the People Act,” banning partisan gerrymandering and requiring independent commissions to draw congressional district boundaries in every state. The bill was blocked by Republicans in the U.S. Senate.

These days, few feasible options for reform remain. In most states, constitutional amendments must be approved by their legislatures. Most distressing, few voters are paying attention to redistricting in their own state, and have not made opposition to partisan gerrymandering a priority, let alone a litmus test. This even though, as David Dewitt points out, it makes a farce of general elections by multiplying safe seats in state legislatures and Congress and “opens the door to corruption, radicalizes political discourse, kills compromise, disintegrates democracy… and poisons everything.”

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”