On Tuesday, the North Carolina Supreme Court reheard arguments in a redistricting case that has been the focus of much national attention. The new conservative majority on the court is reconsidering a recent decision to throw out GOP lawmakers’ gerrymandered voting maps — a decision that had already made its way up to the U.S. Supreme Court and could have sweeping implications. Especially here in Wisconsin, North Carolina’s struggle over its heavily gerrymandered voting maps is important.
We all know the April 4 election for a seat on the Wisconsin Supreme Court could change the balance of power on that body. If a new liberal majority takes over, voting rights advocates intend to bring a challenge to Wisconsin’s heavily gerrymandered voting maps, just as advocates did in North Carolina.
But in that state, the balance of power just tilted the other way — from a Democratic to a Republican majority on the court (unlike the nominally nonpartisan court in Wisconsin, North Carolina justices have declared party affiliations). On Tuesday, the new majority showed every sign it is prepared to reverse the decision that threw out Republicans’ gerrymandered maps less than three months ago.
In the rare rehearing, the court sped through oral arguments during which a lawyer for Republican legislators claimed that the court had overstepped its authority by taking away the legislature’s power to draw the voting maps.
“Just because it’s not fair doesn’t mean this body can do anything about it,” Phillip Stratch, an attorney for the Republicans argued, adding, “some things are beyond the power of this court. … sometimes it has to be left up to the people.”
But how can “the people” decide anything if their elected representatives have deliberately disempowered them through gerrymandering, Democratic Justice Anita Earls asked. Earls pointed to expert testimony on the effects of the North Carolina maps, “that they were among the most extreme partisan gerrymanders possible” and favored Republican candidates even in elections where Democrats got more votes, thus canceling the ability of Democratic voters to make their voices heard.
It all sounds very familiar here in a state that has, according to a federal judge, one of the most gerrymandered voting maps in the country, locking in big Republican majorities in the Legislature even when Democrats win statewide.
State courts have been newly empowered by the U.S. Supreme Court’s decision in Rucho v. Common Cause, which destroyed hopes of a federal remedy for partisan gerrymandering when it held that federal courts do not have the authority to review disputes involving political gerrymandering — unlike cases involving racial discrimination.
In North Carolina, the Republicans argued on Tuesday that the state court should take the same view that the U.S. Supreme Court took in Rucho and find that, as Stratch put it, there is no language about “fair districts” in the U.S. Constitution and there is also nothing about partisanship or fair maps in the state constitution.
In Wisconsin, advocates are optimistic they can make the case that the state constitution does, in fact, have a lot to say about fair maps.
“We believe gerrymandering is one of the greatest threats to our democracy,” says Dan Lenz, staff counsel for the nonprofit, progressive law firm Law Forward.
Advocates could draw on various sections of the Wisconsin Constitution to support a challenge, including sections covering equal protection and apportionment.
Gerrymandering hurts the citizens in our state not just by squelching their voices, but by creating a system where the government ignores the issues they care about, Lenz says. “The function of gerrymandering is to stop what people care about from becoming law.”
The whole reason politics has become so poisonously partisan, he adds, is that “politicians are not accountable in free and fair elections.” With so few competitive districts, all legislators care about are primary challenges — propelling them deeper and deeper toward one side, and away from bipartisan compromise.
That toxic, unproductive environment is just as much a problem as the rank unfairness of our gerrymandered map.
If the Wisconsin Supreme Court, under a new, 4-3 liberal majority, did throw out the state Legislature’s gerrymandered maps, there are various ways new maps might be developed.
The court could ask the petitioners who bring a lawsuit — nonprofit groups, elected officials, and/or voters who argue that they have been disenfranchised by extreme gerrymandering — to submit maps, as they did in the most recent round of arguments. They could appoint outside experts or special masters to come up with a new map. Or they could send the map back to the Legislature with the instruction to try again.
The timeline depends on how the whole process unfolds. But Lenz says he expects that, if there’s a change in the makeup of the court, a suit will be filed in August and a new map could be chosen by March — in time for the 2024 elections.
The good news, for now, is that the U.S. Supreme Court seems to be hanging back from a potentially game-changing decision in the North Carolina redistricting case. In the federal version of that case, a challenge based on the so-called “independent state legislature” theory argues that state courts should have no jurisdiction at all over voting maps; instead, state legislators should have unchecked power to draw their own districts.
As messy and maddening as this week’s tangle of arguments over gerrymandering have been in North Carolina, and as frustrating as our rigged voting system is in Wisconsin, at least for now, the U.S. Supreme Court does not seem to be on the brink of dealing a death blow to democracy by handing total power to hyperpartisan, gerrymandered legislatures.
Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: firstname.lastname@example.org. Follow Wisconsin Examiner on Facebook and Twitter.