A political party wins control of a legislature in a democratic election. That party changes the rules to ensure it cannot be voted out. Modern technology allows this to be done with enormous precision, by packing most opponents in districts where they will have huge majorities, and spreading the rest in districts where they will be a permanent minority.
The trial court finds the party’s map “is more carefully crafted to favor [the party] than at least 99.9999% of all possible maps” using nonpartisan criteria. The highest court agrees and strikes down the blatant partisan gerrymander. But the party in power successfully campaigns to change the composition of that elected court. The new court majority promptly reverses the earlier decision and authorizes the legislature to enact an even more extreme gerrymander.
Think I’m talking about a foreign country run by a party that has no interest in allowing the electorate that voted it in ever to vote it out? No, welcome to North Carolina’s “democracy” after a recent decision of its new Supreme Court majority.
North Carolina is far from unique. This is how our democracy now works in many states. Five years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court had an opportunity to put an end to this blatant rigging of elections. Instead, the conservative majority washed its hands of what may be our highest court’s most sacred obligation — to promote and safeguard our democracy.
Chief Justice John Roberts, writing for the Rucho majority, recognized that “excessive partisanship in districting leads to results that seem unjust” and is “incompatible with democratic principles.” However, he nevertheless ruled that this practice raises “political questions beyond the reach of the federal courts” — as if the Supreme Court refrains from deciding “political questions” in numerous other areas, including most recently when it sharply narrowed the laws Congress enacted to protect our environment. Roberts said this conclusion does not “condemn complaints about districting to echo into a void,” because the states can address gerrymandering.
The North Carolina Supreme Court has now shown that avenue is also foreclosed, at least in that state. And that will affect all of us.
The North Carolina court authorized the gerrymandered legislature to use the same undemocratic methodology to apportion the state’s congressional delegation that the legislature used to apportion its own seats. In the 2022 election, in which congressional districts were drawn on a nonpartisan basis, Republicans and Democrats each won seven of the state’s 14 seats. It is expected that the legislature will now gerrymander the districts for the 2024 election so that Republicans win 10 or 11 of the seats. That margin could determine control of Congress in 2024.
On an even larger level, gerrymandering makes an enormous contribution to the dangerous polarization of our politics. When districts are drawn so they are dominated by one party, there is no need for candidates of that party to appeal to voters of the other party. The only real election is the party’s own primaries, which tend to have low turnout and be dominated by extreme activists. The race to further polarization — and more shameless gerrymandering — is then self-reinforcing. And when the extremes take control in red states, they often also reduce democracy on the local level by preventing cities controlled by Democrats from enacting ordinances that reflect different views.
Ask yourself why Congress and so many state legislatures refuse to take the most basic steps to reduce gun violence and limit the sale of military-style weapons that continue to kill and maim so many, even though such measures have broad public support. Or consider why so many states have enacted anti-abortion laws that are not supported by most people. In North Carolina, for example, the governor is a Democrat. But on May 16, just a few weeks after the North Carolina Supreme Court upheld the legislature’s partisan gerrymander, the gerrymandered supermajority overrode the governor’s veto of a law banning abortions after 12 weeks and imposing other restrictions and mandates designed to limit availability. That never would have happened if districts for the state legislative elections had been fairly drawn.
When the Supreme Court struck down the constitutional right to abortion last June in Dobbs, Justice Alito wrote for the majority (all appointed by Republican presidents): “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. … That is what the Constitution and the rule of law demand.”
Is what just happened in North Carolina what the Supreme Court had in mind? Do the Constitution and the rule of law really demand that legislatures elected based on districts that were drawn to flagrantly favor the party in control be empowered to override a governor’s veto and eliminate women’s right to abortion after 12 weeks?
Article IV, Section 4 of the Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government.” It is time to recognize that extreme partisan gerrymandering does not come close to meeting that standard. James Madison explained in Federalist No. 37 that “Republican liberty” requires “not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people.” That is the opposite of what is happening in North Carolina and many other states today.
Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues.