Purple State: The Supreme Court Takes on Gerrymandering in North Carolina
For many, beer can help relax or socialize with others.
But for Sean Wilson, beer is a stand against gerrymandering, or the practice of drawing district lines to give a certain party a political advantage.
Wilson is the owner of Fullsteam, a brewery company in North Carolina that aims to celebrate the diverse traditions of the American South. The tradition of gerrymandering, though, is unpopular. Recently, Fullsteam created a new beer made from a variety of ingredients grown right in North Carolina and named it “Purple State.”
For every pint sold, $1 is donated to Common Cause, a nonpartisan nonprofit dedicated to promoting an open and accountable government.
According to Wilson, gerrymandering is “not a particularly dynamic issue” and “a little hard to understand” for many voters. Sean hopes his beer can raise awareness.
In 2014, the Washington Post stated that North Carolina tied with Maryland as the most gerrymandered state. Three of the 10 most gerrymandered state districts in the country are in North Carolina.
Last year, the Supreme Court responded to North Carolina’s gerrymandering, swiftly striking down 28 legislative districts in the state because they were unconstitutional racial gerrymanders.
In a lawsuit filed in May 2015, 31 North Carolinian voters sued the state, contending that while Republican lawmakers had redrawn districts in 2011, they had packed African American voters into certain districts. They claimed this redistricting violated the Equal Protection Clause of the Fourteenth Amendment.
The U.S. District Court for the Middle District of North Carolina unanimously ruled in favor of the plaintiffs, but state lawmakers appealed the decision to the U.S. Supreme Court. They argued that the legislature drew the districts in order to comply with the Voting Rights Act, which allows for the creation of majority-minority districts in order to guarantee representation for minorities.
On June 5th, 2017, in North Carolina v. Covington, the Supreme Court affirmed the decision of the lower court. This ruling was significant.
“The Justices were unanimous that 28 legislative districts were unconstitutional. That’s a big deal. There has never been a case where they struck down that many districts at once,” said Allison Riggs, the attorney who represented the North Carolinian voters suing the state, in an interview with The Politic.
Following the Supreme Court decision, the District Court ordered the state legislature to draw new maps so that it no longer diluted minorities’ votes. Riggs was not impressed with the results.
“[The map] looked exactly like the unconstitutional districts with the edges cleaned up, but it [still did] the same thing—it corralled voters based on the color of their skin and that’s not right,” she told The Politic.
The District Court agreed. The judges appointed Nathaniel Persily ‘92 to redraw the map instead. Persily, a professor of law at Stanford University, has been recruited in the past to draw districts for New York, Maryland, Georgia, and Connecticut. The District Court is currently debating whether Persily’s maps fix the gerrymandering problems.
Riggs believes that Persily’s map is constitutional.
“It remedies the racial gerrymandering and it complies with the state constitution,” she explained. “It also does appropriately defer to state legislative policies.”
This battle between the District Courts and the state legislature is still far from over. Even if the District Court approves Persily’s maps, it is likely that the case will be appealed up to the Supreme Court again. Regardless, Riggs knows that many people are watching the results of this case.
“North Carolina for a long time has sort of been a testing grounds for lots of voting issues, be it egregious gerrymandering or be it the application of the Voting Rights Act. Particularly in light of the swing nature of the state, we have a very far right legislature,” she explained. “They are treating North Carolina as a testing ground for voter suppression and for vote dilution and for keeping people from having a say in a meaningful democracy.”
North Carolina’s case could have huge repercussions across the nation.
“Whatever happens here will be watched nationally and, if [the legislators] succeed, replicated,” Riggs says.
Gerrymandering can turn a state from one color to another. Bob Phillips, the Executive Director of the North Carolina branch of Common Cause, elucidates the effect of gerrymandering with election data.
“In 2016, all 13 congressional districts were noncompetitive. Out of 170 North Carolina legislative districts, 42% were completely noncompetitive. 90% of winning candidates either had no competition or won by a comfortable double-digit margin. 77% of seats [went] to one party, which is really out of whack for what North Carolina is. When you look at the all the statewide races and the presidential races, the vote share was split 52-48, which is more reflective of what North Carolina is—a purple state,” says Phillips.
Phillips is concerned that gerrymandering has been exacerbated over the years because both parties have increasingly sought outside expertise to do the gerrymandering. New technology and advanced statistical modeling allow legislators to manipulate district lines with extreme precision.
Nicholas Goedert, political science professor at Virginia Tech, agrees with the dire assessment. Though he recounts that gerrymandering has had a charged history, with both Democrats and Republicans at fault, he thinks that there’s something different about it now.
“In the past, there was an ability to overcome gerrymandering, where the maps backfired. We haven’t seen this in the most recent decades,” Goedert told The Politic. “The Republican gerrymanders have held up and there are strong majorities.”
Covington, along with another Supreme Court decision last year that struck down two congressional districts in North Carolina as unconstitutional, has reignited a long complex legal debate about the limits of racial and partisan redistricting and ultimately, how America’s democracy should function.
The issue of using race to draw districts is quite a delicate one. In Shaw v. Reno (1992), the Supreme Court ruled that race cannot be the predominant factor in how a district drawn—unless there is a compelling governmental interest to do so, which is extremely hard to argue.
Riggs believes that majority-minority districts are important to guarantee that racial minorities have an equal voice in the voting process.
“There are many areas where you need majority-minority districts so that minorities can elect their candidate of choice,” Riggs explains. “[Creating these districts] require a very intense local appraisal of historical conditions, current voting conditions, current levels of racially polarized behavior, and current political behavior.”
“It just so happens that North Carolina had election reforms in the ‘90s and 2000s: early voting, same day registration, no fault absentee voting,” she continued. “[These reforms] have made it easier for black voters to overcome the exclusionary practices that we have had for so long in North Carolina … and to build cross-racial coalitions [so the state] doesn’t need majority-minority districts, at least in legislative districts.”
Republicans still defend their plans. Susan Myrick, an Election Policy Analyst at the Civitas Institute, largely sees the recent lawsuits simply as partisan retribution by the Democrats, who also engaged in partisan gerrymandering until they lost control of both houses in the General Assembly in 2010.
However, Myrick doesn’t dispute the results of the lawsuit. She does note that Republican lawmakers are caught in an impossible “Goldilocks” problem of how much race should influence district lines.
“[Republicans] are looking for that magic place. Is it too much or too little?” Myrick said in an interview with The Politic. “Those maps in 2011 were approved by the Obama Justice Department and they went through the courts twice. It wasn’t until 2016 that the courts said that the maps looked too much at race.”
Myrick argues that the state legislature was forced to create majority-minority districts to comply with Section 2 of the Voting Rights Act and has tried its best to follow the law.
While no legislator has openly asserted the right to racial redistricting, the same is not true of partisan redistricting, which is now the center of attention. The Supreme Court is currently considering two separate cases of partisan gerrymandering in Wisconsin and Maryland. And in North Carolina, Common Cause and the League of Women Voters, represented by Allison Riggs, filed a combined lawsuit against the North Carolina legislature.
That lawsuit was decided on Tuesday, January 9th, 2018, the District Court struck down a 2016 congressional map because of partisan gerrymandering. This ruling is the first time that a congressional plan has been struck down on the grounds of partisan gerrymandering.
The most vital part of the case was research conducted by Jonathan Mattingly ‘92, a mathematics professor at Duke University. After hearing about the shocking effects of redistricting in the 2012 election, Mattingly started his project with the simple question, “What would one expect if one drew nonpartisan districts?”
Mattingly produced maps that fit a certain number of design criteria: splitting the population as evenly as possible, keeping counties whole, drawing compact districts, and maintaining a constitutional percentage of minorities in each district. He then compared how much the structure of the maps that the legislature drew looked like the maps that his method randomly drew.
“The Republican-drawn maps had many more Democrats in the most Democratic districts than one would expect and [fewer] Democrats in the middle districts, the ones that typically switch sides,” Mattingly told The Politic. Lawmakers had strategically diluted Democratic votes.
The metric that Mattingly created isn’t the only one. The efficiency gap, another way of measuring wasted votes, is at the center of the partisan gerrymandering case in Wisconsin. But Mattingly thinks that the efficiency gap measurement has a lot of problems.
“It makes a certain set of assumptions about what should happen and it determines ahead of time what the structure of the votes should be,” Mattingly explained.
Goedert adds to these criticisms, pointing to the instability of the efficiency gap from election to election with the same maps.
Though Mattingly’s work was able to convince the three-judge panel, there are many challenges to adopting these complex metrics to create a standard. Supreme Court Justice Samuel Alito has stated that these tests must be “manageable” for the courts. Chief Justice John Roberts has even called the metrics “sociological gobbledygook.” Mattingly disputes these criticisms, but he still acknowledges that this is only the “beginning.”
“There’s more refining to do,” says Mattingly.
For Phillips, victories in the court are still not enough without legislative reform.
“The courts are limited unless they prescribe how the legislature must then draw the maps. [If not], courts can only say ‘bad maps, try again,’” Phillips explains. “And that’s what we saw in North Carolina. The same people did it and they did the same as what they have done in the past.”
HB 200 was one of the latest attempts at reform through the creation of an independent commission. HB 200 received a considerable amount of traction in the General Assembly because the bill was actually sponsored by four Republicans, one of whom was Representative Chuck McGrady.
McGrady is wary of the term “gerrymandering” but still thinks that North Carolina needs to conduct redistricting in another fashion.
“David Lewis [the Senior Chairman of the NC Select Committee on Redistricting] was very upfront that he viewed his job as to put together maps that would create the largest possible majority of Republicans elected to Congress. Well, I get that. I just don’t think that that’s the right way to do it,” McGrady told The Politic.
McGrady believes that partisan redistricting increases the partisan divide between Democrats and Republicans, contributes to decreased voter turnout, and discourages candidates of the disadvantaged party to run for office.
However, Goedert disagrees.
“Most of the research on [partisan gerrymandering] has shown that gerrymandering is a relatively small or nonexistent factor in explaining polarization,” he explains. “One easy way to look at this is that the Senate has been polarizing at the same rate as the House, and the Senate is obviously not affected by gerrymandering.”
Goedert is still a serious proponent of the non-partisan commissions, as his research has found that they tend to create the most competitive districts and that most other countries with well-functioning democracies have districts drawn through some non-elected commission. But he cautions that politics can’t be taken out of consideration when drawing lines.
“You can’t just have a mathematical formula that draws the most compact districts,” says Goedert. “You need to think about the partisan balance, ethnic interests, economic interests. Of course the process is inherently political, but an independent commission could balance all those competing interests better than legislators can.”
Riggs is skeptical of the types of ideas that she has seen so far.
“There’s not a one-size-fits-all,”she says. “I’ve heard people say ‘oh, we should do it like Iowa.’ Well, Iowa is very white and its geographic building blocks are square. It’s not North Carolina. I don’t want to just substitute one dysfunctional system for another.”
Riggs argues that term limits may be the more promising solution since they disincentivize legislators from protecting themselves. Ultimately, Riggs looks toward demographic changes as the final answer.
“Our demographics are changing rapidly, not because of new birth, but because of migration,” she says. “Every year, more and more folks are moving to North Carolina and these folks are unaffiliated or Democrats, so the politics are changing. We will hit a tipping point where all the gerrymandering in the world can’t keep Republicans in control of the state.”
Myrick disagrees that these demographic changes will change the direction of politics in the state. Though there are more registered Democrats and unaffiliated voters than Republicans in North Carolina, Myrick points out that more Democrats are increasingly voting for Republicans, citing the 2012 presidential election.
“The people of North Carolina have turned. [They] aren’t that progressive or liberal,” she says.
However, Myrick does agree with Riggs in her skepticism of nonpartisan and bipartisan commissions, which she sees as just another body swayed by partisan interests. Legislators still must approve the final maps and they are the ones selecting the people on the commissions.
“Redistricting is partisan no matter what, Myrick says. “Nonpartisan committees are a cover-up. It’s a show. When it comes to politics, it’s partisan.”
Myrick thinks the voters should choose how to resolve the problem.
“If they don’t like what [their representatives] do, they won’t vote for them next time. They will vote for the people who should draw the maps,” says Myrick.
Even so, voters, like brewer Sean Wilson, are still angered by the current gerrymandered system, which Wilson believes is contributing to the “crumbling of functional democracy” and causing irrevocable harm on the brand as a state.
“That richness of being a purple state…leads to good dialogue and debate, [but] the way these districts drawn, we don’t enjoy that confluence and that rich mix in our politics,” Wilson explained.
Wilson places the blame of particularly controversial social issues, such as the passing of House Bill 2, otherwise known as the “Bathroom Bill,” squarely on the practice.
Surprisingly, he notes that the response to his beer fundraiser has been “overwhelmingly positive” and even with his wide range of patrons, there is an “universal acknowledgment that the system is broken.”
It still remains to be seen whether this universal acknowledgment is shared by the Supreme Court justices as all sides eagerly wait for the fate of democracy.