Written by Jayaditya Sinha
Edited by Annika Lilja
The US Supreme Court will soon hold oral arguments for the case of Moore vs Harper, which is a significant case that could have wide-ranging implications for the practice of gerrymandering. The case was initiated in 2021 when claims emerged that the new congressional maps adopted by the Republican-controlled General Assembly were both partisan and racially gerrymandered. Democratic voters and non-profits argued that the map violated the state’s constitution as the new map likely would have given Republicans 10 of the state’s 14 seats in the U.S. House of Representatives, although the state is roughly divided between Democrats, Republicans, and unaffiliated voters. To understand the significance of the case, it is essential to know what gerrymandering is and how it has been employed throughout history.
Gerrymandering is the practice of manipulating the boundaries of electoral districts to benefit a particular political party.
The term originated from Elbridge Gerry, a Massachusetts governor who in 1812 redrew his state's Senate district map in a way that created a district that looked like a salamander, which was subsequently dubbed a "gerrymander." This is done by drawing districts in such a way that the majority of voters in a district are of one political party, often referred to as "packing," or by spreading out a party's voters across multiple districts to dilute their impact, known as "cracking.” This practice has been used throughout history, often to disadvantage minority groups and has been a controversial issue for many years and is especially contentious in the United States.
THE COMPLICATED HISTORY OF GERRYMANDERING IN NORTH CAROLINA
The state of North Carolina has a complicated history of gerrymandering, with both major political parties, the Democrats and Republicans, engaging in the practice. However, the issue gained national attention after the 2010 census and the redistricting that followed. Republicans, who had recently taken control of the state legislature, used their power to draw district maps that heavily favored their party. This resulted in the Democrats, who had previously controlled the state's congressional delegation, losing their majority in the 2012 elections.
The 2010 redistricting was done with the help of consultants hired by the Republican-controlled legislature, who were tasked with drawing maps that would ensure Republican majorities in as many districts as possible.
This involved packing as many Democrats as possible into a few heavily Democratic districts, while creating other districts that were majority-Republican but with a smaller margin of victory. This ensured that the Republicans would win more seats overall, even if they received a minority of the votes statewide.
The North Carolina General Assembly's 2013 redistricted maps were challenged in court by the NAACP and other groups, who argued that the maps were racially gerrymandered and violated the Voting Rights Act. A federal court and later the U.S. Supreme Court both agreed and ruled that the 1st and 12th congressional district boundaries in the state's Congressional district maps were indeed unconstitutional racial gerrymanders and ordered them to be redrawn in the landmark case of Rucho vs. Cooper in 2017. While the fight in the courts was far yet from over, the plaintiffs once again argued that the new remedial congressional maps adopted by the state legislature for the 2018 election as a result of the Rucho v. Cooper verdict, was again an unconstitutional partisan gerrymander under Rucho v.s. Common Cause.
This time the Supreme court gave a mixed verdict ruling stating that "partisan gerrymandering claims present political questions beyond the reach of the federal courts" and that while partisan gerrymandering may be "incompatible with democratic principles", the federal courts cannot review such allegations, as they present “nonjusticiable political questions outside the remit of these courts” (Wikipedia). The lower courts' rulings were overturned, and the case was sent back to them with directions to dismiss it. The General Assembly was tasked with redrawing the electoral boundaries again for the 2018 elections because the lower courts lacked the authority to hear the case.
MOORE V. HARPER
The issue of gerrymandering was brought to the attention of both the North Carolina and U.S. Supreme Court in 2022 for the fourth time since 2011, this time with the nationwide redistricting cycle. The state was to gain 2 additional districts as a result of the 2020 census. The case known as Moore vs. Harper was initiated by a voter named Rebecca Harper who filed a lawsuit against Tim Moore, the speaker of the North Carolina House of Representatives. Harper challenged the boundaries of the 14 newly drawn congressional districts in the state. Initially, the Wake County superior court upheld the maps, but the State Supreme Court later declared them unconstitutional in a 4-3 decision.
The majority agreed that the new maps violated a provision in the state constitution that guarantees free elections, and the state was prohibited from using them in the 2022 elections.
As a result, a new map was drawn by three court-appointed experts. Ironically, North Carolina was the same state where the landmark case of Shaw v. Reno emerged from 3 decades ago. The case involved the redistricting plan of the state that created a majority-minority district and held that race cannot be the predominant factor in redistricting.
Subsequently, the North Carolina speaker of the House, President Pro Tempore of the Senate, and other members of the General Assembly submitted a petition for a writ of certiorari (a legal order issued by a higher court requesting a lower court to send up the record of a case for review) to the U.S. Supreme Court, the Court decided to review the case in June 2022, with a hearing scheduled for the October 2022-23 term.
Their argument was that the State Supreme Court went beyond its authority under the U.S. Constitution's Elections Clause, which provides that the time, place, and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.”
This supports the “independent state legislature theory” which asserts that Congress gives state legislatures significant power to regulate federal elections. However, during the oral arguments on December 7, it was unclear whether a majority of the court agreed with this theory. As a result, the court instructed the parties involved to submit briefs that discuss the impact of the State Supreme Court's decision to reconsider the dispute on the Supreme Court's ability to hear the case in March 2023.
The ruling in the Moore v. Harper case, which is expected to have a lasting impact on the practice of gerrymandering in the United States, may not be reached anytime soon.
This decision will not only set a precedent for future gerrymandering cases but also impact future federal elections by clarifying the extent of power state legislatures have in determining congressional boundaries.
Regardless of the outcome of the case, it is clear that gerrymandering has historically been used to create political advantage, and reform is needed to ensure fairness and equality in the political process. The Court's decision will send a clear message to legislators on how they should exercise their authority and determine to what extent state legislatures play a role in the redistricting process. Only time will tell what the outcome of the case will be, but it is certain that it will have a significant and lasting impact on the practice of gerrymandering in the United States.
Drawing Democracy: North Carolina’s Gerrymandering History | Department of History | NC State University. 29 July 2019, history.news.chass.ncsu.edu/2019/07/29/drawing-democracy-north-carolinas-gerrymandering-history/.
Pete Williams. "Supreme Court allows gerrymandering in North Carolina, Maryland, setting back reform efforts." NBC News, 27 June 2019, https://www.nbcnews.com/politics/supreme-court/supreme-court-allows-gerrymandering-north-carolina-maryland-n1014656.
Morley, Michael T. “Elections Clause.” National Constitution Center – Constitutioncenter.org, National Constitution Center, 9 Apr. 2020, https://constitutioncenter.org/the-constitution/articles/article-i/clauses/750.
Sweren-Becker, Eliza, and Ethan Herenstein. “Moore V. Harper, Explained.” Brennan Center for Justice, 4 Aug. 2022, www.brennancenter.org/our-work/research-reports/moore-v-harper-explained.
“Rucho v. Common Cause.” Brennan Center for Justice, 1 Aug. 2019, www.brennancenter.org/our-work/court-cases/rucho-v-common-cause.
Howe, Amy. “Justices Order New Briefing in Moore v. Harper as N.C. Court Prepares to Rehear Underlying Dispute.” SCOTUSblog, SCOTUSblog, 10 Mar. 2023, https://www.scotusblog.com/2023/03/justices-order-new-briefing-in-moore-v-harper-as-n-c-court-prepares-to-rehear-underlying-dispute/.
Wang, Hansi Lo. “How a Major Election Theory Case at the U.S. Supreme Court Could Get Thrown Out.” NPR, 6 Feb. 2023, www.npr.org/2023/02/06/1154761167/moore-v-harper-independent-state-legislature-theory-north-carolina-court.
“How The Voting Rights Act Ended up Back at the Supreme Court.” Vox.com, 24 Jan. 2023, www.vox.com/podcasts/23568372/voting-rights-act-civil-rights-legislation-us-history.
Totenberg, Nina, et al. “Supreme Court Rules Partisan Gerrymandering Is beyond the Reach of Federal Courts.” NPR, NPR, 27 June 2019, https://www.npr.org/2019/06/27/731847977/supreme-court-rules-partisan-gerrymandering-is-beyond-the-reach-of-federal-court.