Once regarded as the world’s greatest democracy, the United States has taken some pretty serious blows to its reputation in recent years. A case decided this week in the Supreme Court illuminates the problem and takes a hesitant step towards fixing it.
The case is Cooper v. Harris, and it concerned the boundaries of two Congressional districts in North Carolina, the first and the twelfth. Here’s what the twelfth looked like, as drawn by a Republican state legislature.
As you’ve probably guessed, this bizarre shape has a political logic to it. It was designed to corral as many black voters as possible into a single district, rendering it safe for the Democrats and thereby improving Republican prospects in neighboring districts. It’s normal for Congressional districts to be gerrymandered, but you don’t often see one quite as bad as this.
Last year, however, the federal district court ruled that the legislature had impermissibly relied on race in drawing the boundaries and struck them down. North Carolina appealed to the Supreme Court.
What made this so fascinating was that the court had considered these two districts before, in the 2001 case of Easley v. Cromartie. While the boundaries were a bit different then, the demographic imperatives were the same – the legislature was trying to construct districts that would be predominantly black and predominantly Democrat.
But the politics of it were reversed: the boundaries that were contested in Cromartie had been drawn by a Democrat legislature, wanting to ensure that blacks would be represented in the state’s Congressional delegation. And when it reached the Supreme Court, it played out on political lines. Four liberal justices plus centrist Sandra O’Connor voted to uphold the race-based districts, with the four conservative justices dissenting.
Trying to ensure black representation was a praiseworthy objective. But the Republican Party soon realised that it could play that game to its advantage, and that constructing artificial black-majority districts would lock up its opponents’ votes in safe seats, giving it an advantage. So when the first and the twelfth were redrawn after the 2010 census, now with the Republicans in control of the legislature, it was the Democrats who challenged them.
And lo and behold, the Supreme Court justices switched sides as well! Stephen Breyer and Ruth Ginsburg, who had been in the majority in Cromartie, were part of the five judge majority that effectively (although not explicitly) overruled it and upheld the district court’s ruling. Three conservative justices dissented, including Anthony Kennedy, who had voted the other way in Cromartie. (Newcomer Neil Gorsuch joined the bench after the case was argued, so did not participate in the decision.)
Only one judge remained consistent: Clarence Thomas, who wrote the dissent in Cromartie, stuck to his guns and voted with the majority in Harris. His view is that race-based districting is unconstitutional regardless of its purpose and regardless of which party is doing it.
Although he is one of the court’s most conservative justices, Thomas clearly has his own position on racial issues. As Scott Lemieux puts it, “It is not terribly surprising that even a conservative African-American who grew up impoverished in the rural Jim Crow South would have a different perspective on the Confederacy and its legacy than the typical conservative.”
But the real test for Thomas and the other justices will come when they consider gerrymandering that is not so clearly linked to race. Previous decisions, while not positively endorsing partisan districting, have failed to do anything to stamp it out. Meanwhile, the increased sophistication of electronic mapping technology has magnified the problem, creating more and more polarised districts, which in turn have increased legislative partisanship and led to more blatant attempts to rig the system.
Although Democrats do it too when they get the chance, the most glaring cases tend to see them on the losing end. It’s not the whole story of why they have done so badly in the House of Representatives and state legislatures in recent years, but it’s a significant part of it.
Later this year the court is expected to consider the case of Gill v. Whitford, a broader challenge to partisan gerrymandering. Harris offers some hope that it may get a sympathetic hearing. But the fact that most justices seem willing to change their votes depending on which side of politics is arguing the case before them, is a sign of how deep the polarisation runs.
For more on the North Carolina cases, read Mark Stern at Slate , and my report from last year on the voter ID controversy. And if you’re dipping into the Harris judgement, don’t neglect the footnotes, in which the justices exchange unflattering barbs at each other’s opinions – Elena Kagan at one point suggests “the dissent could just have block-quoted that portion of the transcript [from the state’s leading witness] and saved itself a fair bit of trouble.”