Last week, a panel of three federal judges ruled once again that the partisan gerrymander was unconstitutional, having been ordered in June by the Supreme Court to look at the case again. (The lower-court judges had ruled similarly in January.) The possibility remains that the districts could be redrawn. But it is not at all clear that the Supreme Court will allow that to occur, or that the high court, which has avoided giving a decisive answer so far on this issue, will ever constrain partisan gerrymandering nationally.
With all the uncertainty over gerrymandering in federal courts, opponents of partisan gerrymandering might be wise to pursue an alternative route: They could use state law, not federal law, to attack gerrymandering.
In last week’s decision, Judge James J. Wynn of the U.S. Court of Appeals for the Fourth Circuit based his reasoning on U.S. constitutional claims that are also echoed in North Carolina's state constitution. For example, he followed a recent unanimous Supreme Court decision that stated that "packing" voters of one party into a single district to deprive them of opportunities elsewhere was a violation of the 14th Amendment principle of one person, one vote.
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With the retirement of Supreme Court Justice Anthony Kennedy, some court-watchers believe unanimity on this question will not hold. But a very similar argument is also available under North Carolina state law: Article 1, section 19 establishes that all persons in North Carolina shall enjoy equal protection of the law.
The key point is that while the U.S. Constitution provides a floor for the basic rights enjoyed by all citizens, states are free to add additional protections. And nothing prevents states from going further on the question of partisan gerrymandering than the Supreme Court is willing to.
The North Carolina Constitution also may protect partisan voters at a statewide level, which avoids the risk that a court could pick and choose individual districts to invalidate, thus imposing an incomplete or biased remedy. Supreme Court Justice Elena Kagan, a solid vote for the proposition that partisan gerrymandering is unconstitutional, has outlined a theory that gerrymandering unlawfully penalizes a whole political party for expressing its views.
Therefore, she contends, a state political party can assert that it has suffered viewpoint discrimination, a violation of the First Amendment.
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As it turns out, the North Carolina state constitution has a similar guarantee in Article 1, section 14, which protects free speech. The effort to demonstrate that certain viewpoints are being suppressed could make use of mathematical metrics to measure statewide unfairness, some of which are so simple that they can be calculated by pencil and paper or a hand calculator -- a method endorsed, in theory, by several justices.
All 50 state constitutions include First Amendment and 14th Amendment-like protections, and all specifically protect the right to vote. And a majority of constitutions, including North Carolina’s, specify that elections should be free and fair.
The power of such state-level provisions was evident in a case this year in Pennsylvania, in which the state Supreme Court ordered the congressional map redrawn, based on the free and equal elections clause of the state constitution. The U.S. Supreme Court declined to intervene (in an order handed down by Justice Samuel Alito). The new Pennsylvania map for November does not cut up cities in unfairly creative ways, and looks to have as many as nine competitive districts out of 13. The North Carolina Supreme Court might well be disposed to act as a check on the actions of the Republican-controlled legislature. This check is essential, since redistricting plans in that state cannot be vetoed by the governor, in this case Roy Cooper, a Democrat. Four Democrats and three Republicans serve on the state's high court. And if voting rights advocate and Democrat Anita Earls is elected in November, the split would become 5-2.
A local approach to combating gerrymandering need not be limited to courts. Some states allow voters to bring initiatives to the ballot directly, bypassing the legislature. In November, voters in Colorado, Utah and Michigan will have the opportunity to vote to establish redistricting commissions that are independent of their legislatures. But without Kennedy around to uphold the constitutionality of such voter initiatives, these laws may face new federal scrutiny.
For decades, progressives have looked to federal courts as a means of establishing rights at a national level. Now, as those courts move in a conservative direction, it may be time to pursue reform through individual states.
Such a federalist approach lacks the sweeping breadth of constitutional doctrine. But if a damaged roof can’t be replaced entirely, metaphorically speaking, it can still help to patch as many holes as possible.