There is a lot of talk these days about protecting the integrity of the voting process. North Carolina’s Republican-led legislature passed restrictive voter ID laws, later struck down by the courts, to purportedly save us from voter fraud. As the courts noted, there’s little evidence voter fraud exists. But there’s plenty for another practice that undermines the voting process. It’s called gerrymandering.
In May and June, the U.S. Supreme Court struck down two North Carolina Congressional districts and 28 state House and Senate districts as unconstitutional racial gerrymandering. The state spent millions of tax dollars defending against predictable challenges to district maps that were blatantly intended to keep Republicans in power. The N.C. GOP might have prevailed had it not packed the districts it was prepared to concede with African American voters. The Voting Rights Act of 1965 makes racial gerrymandering illegal.
The Supreme Court has been reluctant to get involved in partisan gerrymandering, with some justices asserting that it invades a traditional domain of state authority. Lawyers for Republicans argued that African Americans weren’t packed into a few districts because of race; it was because they were Democrats. The court didn’t buy it. A majority of justices agreed that if a significant number of voters are placed in a district because of their race, it doesn’t matter what other objective lawmakers had.
In cases in 1986, 2004 and 2006, a majority of the court agreed that partisan gerrymandering violates the Equal Protection Clause of the Fourteenth Amendment. But it has been unable to find a standard for evaluating when partisan gerrymandering has gone too far. That may be about to change. This fall the Court will hear Whitford v. Gill, a case out of Wisconsin that advances a standard called the “efficiency gap.”
In the 2012 elections, Wisconsin Democrats received a majority of the statewide vote, but only 39 percent of the seats. That only happens if the districts are drawn so that Democrats’ votes have been what University of Chicago law professor Nicholas Stephanopoulos calls “packed” and “cracked.” In this case, the Republicans had packed Democrats into a small number of districts where the Democrats won by large margins. They “cracked” the remaining Democratic votes among the majority of districts so there were too few in any of them to win, giving Republicans narrow victories. Stephanopoulos and political scientist Eric McGhee came up with the idea of using the “efficiency gap” to measure the resulting wasted votes.
A panel of federal judges accepted this standard and ruled the Wisconsin districts unconstitutional, ordering them redrawn by the 2018 election. The case is now before the Supreme Court.
The North Carolina maps the court ordered redrawn for racial gerrymandering gave Republicans a 10-3 majority in Congress even though the Democrats got 46 percent of the statewide Congressional vote, which would have resulted in five or six Democratic seats if districts had been drawn fairly.
Those maps are among more than 40 cases where a court has had to intervene in NC redistricting since 1980, according to the North Carolina Coalition for Lobbying and Government Reform, which means Democrats were just as guilty when they controlled the state legislature.
This travesty leaves voters never knowing which district they’ll be in, costs the state millions of dollars, promotes polarization and cheats voters of government that is truly representative. HB 200, a bill introduced by Rep. Chuck McGrady, a Henderson County Republican, offers one way for voters to reclaim their rightful role in choosing their representatives. It would establish a nonpartisan legislative staff to draw district maps. Just as with similar bills in previous sessions, it died in committee.
Going back to 1992, about half of legislative races in North Carolina have had only one candidate on the ballot. In the 2016 campaign, about one-third of the 170 N.C. House and Senate seats were essentially decided by the filing deadline, giving voters no choice. Since 1963 when the court decided a case called Gray v. Sanders, states have had to adhere to the “one person, one vote” rule, meaning they must draw districts with roughly equal population. That rule is sabotaged when votes are “wasted.”
When voting is compromised, democracy itself is compromised. If serving the state’s rather than their own interests were lawmakers’ first priority, they would pass McGrady’s bill. That’s what we should demand. Otherwise, our only hope for a process that makes “one person, one vote” mean something rests in the Supreme Court.
This is the opinion of Carolina Commentary, a not-for-profit platform established for the purpose of commenting on North Carolina public policy issues.
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