The U.S. Supreme Court’s decision in 2019’s Rucho v. Common Cause was a painful setback for voting rights advocates. By a 5–4 vote, SCOTUS slammed the federal courthouse door on partisan gerrymandering claims, ruling that they cannot be brought under the U.S. Constitution. But Rucho had a silver lining in Justice Elena Kagan’s powerful dissent, which showed state judges how to kill off the practice under their own constitutions. Her dissent served as a blueprint for the North Carolina court that invalidated the state’s legislative gerrymander on Tuesday. That decision charts a path forward for opponents of political redistricting. Every state constitution protects the right to vote or participate equally in elections, and state courts can take up Kagan’s call to arms to enforce those protections under state law.
The brilliance of Kagan’s dissent lay in its clarity: She laid out the precise harms inflicted by partisan gerrymandering and explained how they can be measured and remedied. Kagan identified two distinct but intertwined constitutional violations: Warped maps “reduce the weight of certain citizens’ votes,” depriving them of the ability to participate equally in elections; they also punish voters for their political expression and association. These dual injuries, Kagan concluded, implicate fundamental principles of both equal protection and freedom of speech.
After castigating her conservative colleagues for minimizing these harms, Kagan illustrated the ease with which courts can address them. In his Rucho opinion, Chief Justice John Roberts insisted that federal courts were unable to determine when a partisan gerrymander goes “too far.” Kagan pointed out that, in fact, plenty of lower courts have already done exactly that. These courts deployed a three-part test. First, they ask whether mapmakers intended to entrench their party’s power by diluting votes for their opponents. Second, they ask whether the scheme succeeded. Third, they ask if mapmakers have any legitimate, nonpartisan explanation for their machinations. If they do not, the gerrymander must be tossed out.
“If you are a lawyer,” Kagan wrote, “you know that this test looks utterly ordinary. It is the sort of thing courts work with every day.” In practice, the most important part of the test—its evaluation of a gerrymander’s severity—often boils down to a cold, hard look at the data. Take, for instance, North Carolina’s congressional map, which contained 10 Republican seats and 3 Democratic ones. Experts ran 24,518 simulations of the map that used traditional, nonpartisan redistricting criteria. More than 99 percent of them produced at least one more Democratic seat. The exercise verified that North Carolina’s map isn’t just an outlier but “an out-out-out-outlier.”
Gerrymandering… how in a democratic republic a political party insures minority rule.
