A narrow majority of U.S. Supreme Court justices ruled Thursday that the question of whether lawmakers violate the Constitution when they draw election maps to entrench their political power is "beyond the reach of the federal courts."
The groundbreaking 5-4 decision handed North Carolina's Republican lawmakers, who authored the congressional map at the center of the case, a major victory and allows district lines to stand for the 2020 election for U.S. House. The decision also applied to another pending case out of Maryland, where Republican voters sued the Democratically controlled legislature over similar claims of partisan gerrymandering.
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But the implications are much broader and are expected to have ripple effects across the country as legislators prepare to redraw their political maps after the 2020 census. And it will severely limit the future role courts can play in judging such cases.
In their opinion issued Thursday in Rucho v. Common Cause, authored by Chief Justice John Roberts, the court's conservative bloc wrote that their ruling "neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void."
"But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that we were authorized to do so," Roberts wrote.
The order overturns a previous ruling from a lower federal court, which declared the North Carolina legislature's maps unconstitutional and required a redraw for 2020.
Roberts was joined by justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined the dissent authored by Justice Elena Kagan, who took the uncommon step of reading the minority opinion from the bench Thursday morning.
In her dissent, Kagan wrote that courts across the country had "coalesced around manageable judicial standards" to decide partisan gerrymandering cases in the most egregious cases, which she argued was squarely the responsibility of the judicial branch.
"In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong," Kagan said.
Advocates against partisan gerrymandering called the ruling a "bitter disappointment" but said the fight against the practice was far from over. Another partisan gerrymandering case, in fact, will go to trial in North Carolina next month.
Not a role for the high court
Roberts appeared to take pains to acknowledge that the majority's opinion shouldn't be interpreted as backing the practices of extreme partisan gerrymandering. He even acknowledged that in both cases – North Carolina and Maryland – "the districting plans at issue here are highly partisan, by any measure."
But the majority's primary concern was that, unlike cases involving one person-one vote or racial gerrymandering, there had emerged no clear, objective standards for applying a constitutional test to partisan gerrymandering.
In short, he said, striking down maps in North Carolina and Maryland – and overruling the Republican and Democratic parties in control of the process – would grant the court too much latitude in the political process.
"What the appellees and dissent seek is an unprecedented expansion of political power," Roberts wrote. "We have never struck down a partisan gerrymander as unconstitutional – despite various requests over the past 45 years."
The judicial standards plaintiffs did suggest, Roberts argued, essentially boiled down to a desire for proportional representation, which Constitution doesn't call for. In a winner-take-all system, unfairness is essentially baked in, and he said the plaintiffs' suggested measures for deciding partisan gerrymandering cases weren't up to snuff.
"Deciding among these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal," Roberts wrote.
In underlining the majority's stance that the decision shouldn't end opposition to partisan gerrymandering, Roberts noted that the proper venue for dealing with the issue is not the federal courts.
He pointed to state-level legal challenges on the grounds that such partisan redistricting could violate state constitutions. Other solutions might be a proposed federal law that changes the rules for reapportionment or citizen ballot initiatives that mandate the use of independent redistricting commissions.
"We express no view on any of these pending proposals," Roberts wrote. "We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open."
Kagan's dissent, however, was a fiery reproach to the majority's ruling, accusing them of disregarding the "constitutional harms" at the core of the cases and damning future courts from further action on partisan gerrymandering.
"The gerrymanders here – and they are typical of many – violated the constitutional rights of many hundreds of thousands of American citizens," Kagan wrote. "Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process."
The majority's conclusion that the plaintiffs were essentially requesting proportional representation, Kagan wrote, was incorrect. Courts often make judgments about the "substantiality of harm" without reducing them to percentages, she said. These cases were enough to demonstrate that "neutral and manageable" standards exist to limit the worst-case scenarios in partisan map-making, she added.
"That the two courts below found constitutional violations does not mean their tests were unrigorous; it means that the conduct they confronted was constitutionally appalling – by even the strictest measure, inordinately partisan," Kagan wrote.
While it's possible to break out of the partisan gerrymandering cycle with additional legislation or ballot initiatives, Kagan noted with "deep sadness" her disagreement with the majority that the court shouldn't play a role.
"Of all times to abandon the Court's duty to declare the law, this was not the one," she wrote.
Advocates: Fight isn't over
The decision triggered a flurry of statements from political groups and advocacy organizations in North Carolina and nationwide.
"We are pleased that the Supreme Court declined to overrule the sovereignty of states and has held that the power to draw Congressional Districts lies with state legislatures and not the courts," newly appointed North Carolina Republican Party Chairman Michael Whatley said in a statement.
Claiming victory at the legislature Thursday morning, Rep. David Lewis, R-Harnett, said that he agreed with the court's decision.
“It is not the judicial branch’s responsibility to determine the winners and losers," he said. "This is a complete vindication of our state and of the fair and open process that we ran. When courts decide if Republicans or Democrats win, it undermines the legitimacy of the court."
Lewis, who oversees the map-making process in the General Assembly, also told reporters that it's time for "leftist groups" to stop wasting taxpayer money on lawsuits and bring the conversation "back to the legislature."
"If there are better ways to draw maps, let’s talk about them," he said.
But an end to such cases isn't likely.
A gerrymandering case on the state level – Common Cause v. Lewis – goes to trial July 15 and will not be directly affected by the U.S. Supreme Court decision. Roberts' majority opinion, in fact, noted state courts are one avenue gerrymandering opponents might take to solve the issue.
Several bills, meanwhile, have been introduced into the current session of the General Assembly to establish independent redistricting commissions or alternative methods of drawing maps. None has made it out of committee.
In a conference call with reporters Thursday, Allison Riggs, who argued the North Carolina case on behalf of the League of Women Voters, called the Supreme Court decision "deeply disappointing."
"To say that this won't be read as condoning excessive partisan gerrymandering doesn't accord with the reality we find on the ground, which is extreme partisans celebrating this decision as rubber-stamping what they've been doing for so many decades," Riggs, the senior voting rights attorney for the Southern Coalition for Social Justice, said.
She also said the battle against the practice would continue, both in state courts and in the legislature. But she urged against voters "staying home and giving up."
"It's only cementing the win that these extreme partisans have gained today," Riggs said. "It furthers what their desires are, which is to govern based on the whims of the few instead of the many."
Republican 6th District Congressman Mark Walker, meanwhile, called the ruling a "rebuke of activist judges."
"There is no doubt that North Carolina liberals' 'sue till blue' strategy will continue as we face more partisan cases that cost the state more money and faith in our election process," Walker said in a statement.
It took less than an hour for the North Carolina Democratic Party to issue a fundraising appeal based on the decision, slamming President Donald Trump's "handpicked Supreme Court."
In a statement, Democratic Party Chairman Wayne Goodwin accused Republicans of silencing the voices of voters for nearly a decade.
"Today, the Supreme Court rewarded undemocratically-elected politicians who continue to show they will rig our state and our country to hold onto power no matter the cost," Goodwin said. "North Carolina Democrats are committed to fighting for the fair maps and independent redistricting the people of our state deserve."
A group of advocates and lawmakers – including some Republicans – seemed to agree on some of those points. North Carolinians for Redistricting Reform Executive Director Mary Wills Bode said the high court's decision underscored the need for legislative action. The group has worked with lawmakers, including Rep. Chuck McGrady, R-Henderson, on legislation to establish nonpartisan redistricting criteria for the mapmaking process.
McGrady has also filed separate legislation to create independent redistricting groups.
"The need for redistricting reform is not a Democrat or Republican issue – it’s a North Carolina issue, in need of a North Carolina solution," Bode said in a statement. "This legislative session, we urge state lawmakers on both sides of the aisle to come together and support the FAIR Act."
The FAIR Act, House Bill 140, would amend the state constitution to put those nonpartisan redistricting criteria in place. Bode said in an interview with WRAL News that her group planned to work with the legislature in the coming weeks to move the bill forward.
Given the uncertainty around how parties will fare in the 2020 general election, she said the FAIR act could serve as an "insurance policy," for legislative leaders by taking the political out of the process.
And with the Supreme Court case now clear about who should take responsibility for the issue, she said the time to act is now.
"Partisan gerrymandering is wrong and it needs to end – the stakes are very high," Bode said. "Come to the table. Let's figure out a way."
Duke math professor Jonathan Mattingly, whose work to detect the signatures of extreme partisan gerrymandering was cited by the plaintiffs in oral arguments, said in an interview with WRAL News that he was concerned the high court's decision would send a message to political mapmakers that they were now "free to practice your craft in the open and subvert the will of the people."
That message, he said, was the wrong one.
"They didn't say it was moral. They didn't say it was OK. They just decided they couldn't act," Mattingly said. "The question for the legislature is: Are you going to act?"
Grappling with history
Courts have ruled, again and again, that efforts to disenfranchise minority voters through the use of racial gerrymandering is a violation of the constitution. The long battle over North Carolina's congressional maps, in fact, began as a racial gerrymandering case that forced Republican lawmakers to redraw the maps in 2016.
But when mapmakers subbed in election results for racial demographic data, their opponents – Common Cause, the state Democratic Party and the League of Women Voters – launched a new legal challenge over partisan gerrymandering, a far more unsettled area of case law.
In at least one respect though, North Carolina's case stands out: Republican mapmakers were explicit about their intent to maintain "partisan advantage," and have since argued doing so was legal.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” Lewis said on the floor during the redistricting debate in 2016.
Thursday's opinion was not the first time the high court has weighed in on the issue of partisan gerrymandering.
The decision comes more than 30 years after the Supreme Court established in a case out of Indiana that such claims do fall under the justices' purview. But the Davis v. Bandemer decision in 1986 did not overturn state legislative maps, and justices couldn't reach a consensus on what standards to apply when judging them.
Although that precedent was essentially overturned Thursday, that's exactly what plaintiffs sought from the high court in Rucho v. Common Cause.
During oral arguments in March, justices signaled their reservations over the court's role in the redistricting process, a responsibility entrusted by the Constitution to state legislatures.
Their charge was to answer three big questions: Whether plaintiffs had the actual legal standing to sue, whether justices should even take on the case and whether the Republican-drawn map was an unconstitutional partisan gerrymander.
Just a year before, the Supreme Court sent a partisan gerrymandering case from Wisconsin back to a lower court essentially undecided after finding plaintiffs didn't satisfy the standing issue.
But justices didn't spend much time on that question in oral arguments over North Carolina's maps.
Plaintiffs argued before the high court that the North Carolina legislature's partisan gerrymandering violated the First Amendment and Equal Protection rights of North Carolina voters, as well as the Elections Clause.
The state legislature's lawyer countered that the court's intrusion would rob the General Assembly of its constitutional authority to redistrict and land a flood of similar cases in the courts.
Justices were particularly stuck – just as they were 30 years before in Davis v. Bandemer – on what judicial standards might limit that flood. Conservatives particularly questioned how those standards would avoid using proportional representation as a foundation.
In North Carolina's case, Republicans now hold 10 of the 13 U.S. House seats after they won about half of the popular vote in 2018. But elections are winner-take-all, justices have noted in this and past cases, and there's no constitutional guarantee that vote totals should correlate with the makeup of a state's congressional delegation.
Instead, plaintiffs pushed for more sophisticated statistical testing pioneered by a number of social scientists and mathematicians, including Mattingly's team at Duke University.
Before the court in March, lawyers for the plaintiffs directly referenced Mattingly's research, which generated 20,000 possible congressional maps that satisfied North Carolina lawmakers' criteria for redistricting. Only about 1 percent of the those maps, the analysis showed, ended in a congressional delegation with 10 Republicans and three Democrats.
Using such techniques, plaintiffs argued, could help the courts establish manageable judicial standards to prevent a glut of redistricting cases from overwhelming the court – and allowing judges to determine electoral outcomes.
The North Carolina case was closely tied to a more limited one in Maryland argued before the high court the same day. In Lamone v. Benisek, Republicans challenged Democratic lawmakers' maps over similar partisan gerrymandering claims, arguing the maps diluted their votes and violated their First Amendment rights.
CORRECTION: A previous version of this story incorrectly reported that Republicans in 2018 won slightly less than half of the popular vote in 2018. They tallied just over 50 percent of the vote.