A House Divided: Federal and State Splits on Voters’ Protections
A few weeks ago, North Carolina's Republican-dominated legislature passed a new congressional map that reduces the party's number of congressional seats from ten to eight. This happened after state judges blocked their first map, which would have reduced their number of seats from thirteen to ten, as it was considered so gerrymandered that it violated citizens' rights as stated in North Carolina's state constitution.
What is gerrymandering?
Gerrymandering, the act of drawing district lines in a way that favors a certain political party, violates the state constitution on two fronts: equal protection and freedom of speech and assembly. The North Carolinian interpretation of equal protection includes "the fundamental right of each North Carolinian to substantially equal voting power." Gerrymandering prevents constituents from having equal voting power, as it minimizes the electoral influence of those who would vote against the favored party.
Gerrymandering is typically done in two ways: “packing” and “cracking.” Packing involves sorting all the members of the opposing party into a small number of districts. While the opposing party is guaranteed a couple of representatives in office, the configuration of the remaining districts makes it impossible for them to gain any more. Cracking, the other method of gerrymandering, involves dispersing the opposing party members across all the districts so that they are outnumbered in each, making it impossible for them to have a significant effect on the outcomes of their elections.
Gerrymandering doesn't only affect local elections, however. In presidential elections, electors for the Electoral College are chosen by the state political parties. People vote for the electors by voting for the candidate of the same party. Whichever presidential candidate wins the state’s popular vote gets two of the state's electoral votes, and the rest of the electors are chosen on a district-by-district basis. Thus, gerrymandering can affect which electors get to vote for the president of the United States.
The North Carolinian concept of free speech prohibits both packing and cracking, treating gerrymandering as the act of organizing "disfavoured speakers … into legislative districts with the aim of diluting their votes." In fact, the North Carolinian Constitution protects citizens from gerrymandering to a greater degree than does the federal constitution. According to the Supreme Court, the federal Constitution protects voters from racial gerrymandering, but not from partisan gerrymandering.
Federal vs. State Voting Protections
The difference between state voting protections and federal voting protections is gaping. The Supreme Court has ruled racial gerrymandering to be a violation of federal voting rights, but it also ruled that federal judges lack the authority to place limits on the drawing of congressional maps for partisan gain. In his decision, Chief Justice John Roberts wrote that state courts could rule on partisan gerrymandering for themselves.
The disconnect between state and federal law can be traced back to the federal constitution. Voting is technically a reserved power, meaning it falls under the jurisdiction of the states. The Constitution only protects people's eligibility to vote (in the 15th, 19th, and 26th Amendments) and ability to vote (in the 24th Amendment, which eliminated the poll tax). The federal government also notably interfered with voting rights by passing the Voting Rights Act in 1965, but the power of this legislation was famously curtailed by the Shelby County v Holder decision. The federal government typically applies the Equal Protections Clause of the 14th Amendment when impacting voting, but the Equal Protections Clause does not account for the diluting of votes based on political ideology.
Because voting rights are mainly determined on the state level, elections are run to vastly different standards across the country. Some states have strict voter ID laws. Others have specific registration restrictions. Others still make it difficult to vote early or via an absentee ballot. There is a wide spectrum for gerrymandering laws as well. North Carolina specifically provides three standards for preventing gerrymandering: that there is contiguity for Senate and House districts; that the populations in each district are as equal as possible for both House and Senate; and that the districts follow county boundaries for both House and Senate. Some states, such as Connecticut and Georgia, have less criteria for qualifying districts; others, such as Hawaii and Michigan, have more.
Gerrymandering in North Carolina
Despite North Carolina’s strict standards, its residents have faced aggressive gerrymandering. In 2011, a House map drawn by the Republican-dominated state legislature heavily favored the interests of Republican state leaders. In the 2016 case of North Carolina v. Covington, the US Supreme Court ruled that two of the thirteen districts were drawn with the intention of diluting black voting power and ordered the state legislature to redraw the map. Republican legislators argued that it was too close to the primary to redraw the 2016 maps without disrupting House election campaigns.
After the 2016 elections, the legislature drew a new map. In 2018, federal judges ruled that the state's congressional map had once again been drawn to favor Republicans. However, it was once again too late to redraw it, because the primaries for the 2018 congressional elections had already occurred at that point, and so Republicans were once again allowed to use their gerrymandered map for the elections.
Typically, it is too late to redraw districts after the map has already been used for primaries or if an election is coming up. Redrawing districts is an important and sensitive issue, so it may not be prudent to place a strict deadline on the process. However, it is possible that these deadlines are being used strategically. In the 2018 controversy, the North Carolina Republicans asked the judges to delay the enforcement of their ruling against them. The attorneys for the plaintiff in the case agreed to the delay with the condition that a schedule be put in place for the Supreme Court to hear the case before the 2020 elections, if they so choose.
A few months ago, the state court ruled the congressional maps unconstitutional in Common Cause v. Lewis because they violated the Equal Protection Clause, the Free Elections Clause, and the Freedom of Speech and Freedom of Assembly Clauses in the North Carolina state constitution. In drawing the maps, the legislature seemed to have factored in race, which is strictly prohibited by the Supreme Court. According to the Court, “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.” The ruling prompted the state legislature to propose the ten-seat map. The second map was problematic in its own way, but it did not “unnecessarily [increase] the percentage of black voters in districts where black voters had been successfully electing their candidates of choice,” as its predecessor had. In the end, Republicans were ordered by the court to throw out the map.
The newest map, the eight-seat map, gives Democrats a strong advantage in five districts and splinters the safely red districts held by incumbents Representative George Holding and Representative Mark Walker. It also renders Republican Representatives Mark Meadows's and Richard Hudson’s districts less conservative and more competitive. The ten-seat-map had split some Democratic-leaning cities such as Asheville and Greensboro between districts, most likely in a cracking effort, but this issue is mostly fixed in the eight-seat map. The new map also creates new Democratic-leaning districts in Raleigh and Greensboro.
Despite all these new changes, Democrats argue that it is still not enough. Former US Attorney General Eric H. Holder Jr., who leads the national effort against gerrymandering, said that the eight-seat map "simply replaces one partisan gerrymander with a new one." An analytical comparison between the partisan makeup of each new House district and computer simulations of a thousand different nonpartisan House maps showed that all but three of the new districts were packed with such overwhelming majorities of Democratic or Republican voters compared to the nonpartisan maps, rendering them uncompetitive in all but the most lopsided elections. In other words, the Republicans allegedly packed Democrats into five of the thirteen districts to ensure that the other eight were noncompetitive and Republican.
The National Fight Against Gerrymandering
Many states, including North Carolina, are also stricter about election procedures than the US Constitution. Thirty states, including North Carolina, constitutionally require "free" elections. Eighteen of those states also require "equal" or "open" elections, and fifteen protect the right to vote without interference from "civil or military" powers.
However, the concept of “free elections” varies across states just as much as protections against gerrymandering do. In slight contrast to the states mentioned above, many states have free elections clauses that are just a few words long. North Carolina’s free elections clause is as follows: “All elections shall be free.”
Consequently, there are many cases like North Carolina's in play. Last year, the Pennsylvania Supreme Court threw out the state's congressional map. The new map was used for the 2018 elections and was given credit for helping Democrats split the state's eighteen congressional seats, which had been dominantly Republican for years. On the 2018 ballot, Ohio and Michigan voters also approved measures to decrease partisan influence in redistricting.
As we approach the 2020 census, it becomes even more important to clarify what constitutes a fair electoral map ahead of the mandatory redistricting process each state will have to undergo. Since the goal of mandatory redistricting is to create districts that are as equal in population as possible to account for demographic changes as recorded by the new census, redistricting can lead to significant changes in districts, including cutting them up or eliminating them altogether.
Gerrymandering affects how politicians represent their constituents' interests. Because gerrymandering impedes the population's ability to elect the candidate of their choice, it impedes their ability to hold their representative accountable for how they represent their interests if that representative is of the party that has control over the legislative districts. As a result, representatives are going to be more concerned with how their party perceives them than how their constituents see them, because in most states, the state legislature (read: the majority party) is in charge of drawing the districts. Thus, parties have more power than constituents in advancing a politician's career.
Furthermore, gerrymandering encourages party extremists to run instead of moderates. When their party controls how the districts are drawn, and the districts are drawn in their favor, a candidate only has to win the primary to get to the seat, and there's no need to appeal to the minority party or its supporters. When the state legislatures draw the districts, legislators get to choose who their voters are instead of the other way around.
Thus, the fight in North Carolina becomes even more consequential to other states dealing with the question of gerrymandering because it has opened up a trend of relying on state voting laws rather than federal voting laws. Given that the former are far more thorough than the latter, voting rights groups will have a better chance of fighting gerrymandering in the state courts. As in North Carolina, many of these battles will hinge on how states individually define the concept of fair and free elections. These definitions could make or break the case against gerrymandering, and therefore the ability of citizen’s vote to have an impact.
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