US Supreme Court casts long shadow over talks on gerrymandering reform

Around noon Friday, the U.S. Supreme Court announced dates for oral arguments in two cases – one against Republicans in North Carolina and another against Democrats in Maryland – that most of the experts, activists and elected officials gathered in Durham hoped might set a legal standard to limit the most extreme forms of partisan gerrymandering.

The legal challenges – and others churning through state and federal courts across the country – loomed large over the Reason, Reform and Redistricting Conference at Duke, organized by Common Cause. The nonprofit government watchdog group has led efforts in North Carolina to challenge maps they've argued are some of the most politically gerrymandered in the country, and their lawyers will argue that case before the nation's highest court on March 26.

But it's unclear exactly how the justices, many of whom have expressed skepticism about the court's role in a process that constitutionally belongs in the hands of state lawmakers, will rule. Adding to the uncertainty is the retirement of Justice Anthony Kennedy, the swing vote on the court who left open the possibility that partisan gerrymandering, given the right legal standard, could be declared unconstitutional.

Before Republicans took control of the North Carolina General Assembly in 2011, Common Cause and other advocates like Jane Pinsky, director of the North Carolina Coalition for Lobbying and Government Reform, pushed bills that sought to change the way state lawmakers draw maps after the 10-year census.

Those bills failed under Democrats. In subsequent years, similar bills establishing bipartisan or independent redistricting committees failed under Republicans, too.

"When Republicans first got control in 2011, there were a lot of legislators who said, 'Well, [Democrats] did it for 140 years. Talk to me 140 years from now. We want to even the score,'" Pinsky said. "It's like the kids in the back of the car going, 'You touched me first. You took my toy first.' It's silly."

Now, though, advocates noted during two conference panels focusing specifically on North Carolina that mounting legal and political uncertainty might improve the prospects of reform.

"What we need to do is capitalize on that uncertainty and encourage both parties, as well as those people who are unaffiliated, to support meaningful reform that's fair to everybody," said Tom Ross, former University of North Carolina president and co-chair of North Carolinians for Redistricting Reform.

Rep. Chuck McGrady, R-Henderson, who sat in on the conference Friday, agrees.

"I do think this is the year to do it," McGrady said. "If the Republicans aren't sure they're going to be in charge and the Democrats aren't sure they're going to be in charge, maybe they'll both opt for a neutral process."

McGrady is working on a measure for the legislature's return to Raleigh this year that, much like his redistricting bills before, would create an independent commission to draw the maps.

But he's also changing tactics.

Alongside the recurring bill, he's working on a separate measure – again with Republican and Democratic colleagues – for an amendment to the state constitution that would limit the types of data used to carve up districts and expressly forbid partisan criteria. It would leave the power to draw maps to legislative staff, rather than a commission.

"There are many ways to skin this cat," McGrady said. "If I can't get majority support for the commission bill, I'm willing to go with a different approach."

Such an amendment would require approval by three-fifths of the House and the Senate, along with the backing of a majority of North Carolina voters.

McGrady said he's focused right now on finishing the language of the bills for introduction by mid-February and making sure at least one of the options has enough support in the House.

"If my leadership doesn't support it, it's not going forward," McGrady said.

Ross, who advocates for the constitutional amendment approach and has worked with McGrady on the bill, told the audience at the conference Saturday that forming an independent commission would be difficult, given the level of distrust among lawmakers in the statehouse. He pointed to long-running fights between Democrats and Republicans on other state commissions, like the elections board, which has been disbanded by court order for more than a month.

"It's a really hard debate that I fear will interfere with our ability to get some sort of reform before 2021," Ross said.

North Carolina doesn't allow voter referenda, a tactic where other redistricting reformers in states like Michigan and Colorado have declared success. But Ross said a redistricting amendment could mandate transparency and limit the information mapmakers can use to precisely slice and dice voters, ensuring a partisan advantage.

"It's important to say what we're not going to use and have the data we are going to use disclosed in advance," Ross said. "It's hard to police the data if we don't know up front what's being used."

Although she's advocated for independent commission legislation in the past, Pinsky told the conference Saturday that adopting transparency would put the map-making process in front of the public where it belongs.

"Anything we can get that decreases the power of an individual party and decreases the distance the process is from people is a big step forward," Pinsky said. "We never get exactly what we want."

And she's confident now's the time, with state lawmakers are eyeing the North Carolina case before the Supreme Court, along with a mixed bag of election results for both parties.

Another factor: State courts, where gerrymandering cases are still churning. Five of the seven justices on the North Carolina Supreme Court are now registered Democrats, including Anita Earls, who has herself litigated redistricting cases.

"There are Republican members who look at me and say, 'I'm going to have to choose between voting for a bill or letting Anita Earls draw the map,'" Pinsky said, before adding that it's likely the newly elected justice would recuse herself. "They are terrified of her."

That partisan balance on the court may worsen for Republicans soon.

Democratic Gov. Roy Cooper will appoint Martin's replacement and tap a new chief justice.

A serious consideration of redistricting reform, Ross said, would be a smart move for state lawmakers who want to keep control over the map-making process instead of turning it over to the courts in legal challenges. But he also argues it will be better for voters, who have told him firsthand they want to see lawmakers come together with better solutions than the process in place now.

"Winston Churchill said that democracy's the worst form of government – except for all the others," Ross said. "So we need to make it work."