When Republican or Democratic state legislatures draw election districts, can they deliberately do so in a way that favors their own political party? On March 26, the Supreme Court will hear oral argument in a pair of cases challenging that practice, known as partisan gerrymandering, and NYU Law experts have provided the justices with significant input on both.
While the Court has found racial gerrymandering—drawing districts to include or exclude voters on the basis of their race with no legal justification—to be unconstitutional, it has not made the same determination when redistricting has been along political lines. If the justices were to do so now, it could have momentous consequences, requiring redrawing of existing districts ahead of the 2020 election and shaping a new round of redistricting that will follow the 2020 census.
Rucho v. Common Cause involves Republican-drawn districts in North Carolina that in the 2016 election resulted in Republican congressional candidates winning 10 of the state’s 13 congressional districts, or 77 percent, despite winning just 53 percent of the statewide vote, according to court filings. In Lamone v. Benisek, plaintiffs have alleged that Democratic legislators in Maryland boosted their ranks in the state’s congressional delegation by intentionally re-drawing one district to flip it to Democratic. In court filings in both cases, public officials involved in the redistricting acknowledge that one goal was to entrench their own party’s statewide power, but say this was not done excessively and that other redistricting principles were employed as well.
North Carolina officials also argue that the entire area should be left to the political process and is not appropriate for the courts. This is likely to be the most pivotal issue for justices. In both Rucho and Lamone, the NYU Law experts say the facts and the Constitution require judicial invervention.
Sudler Family Professor of Constitutional Law Richard Pildes is a member of the legal team representing the government reform organization Common Cause, a plaintiff in Rucho. He expresses hope that the justices will act because, he says, what was done in North Carolina “presents the most extreme partisan gerrymander that has been before the Court.”
Pildes adds: “Legislators of both parties currently think anything goes if they have enough political power to ram a plan down the throat of the party out of power. This rigging of elections through manipulating the design of districts leaves voters without meaningful choice, increases the polarization of Congress, makes political bodies less responsive to voters, and has other pernicious consequences for American democracy.” (Read the Common Cause brief co-authored by Pildes.)
Others from NYU Law have weighed in on the cases through amicus briefs on behalf of the following:
Dorsen, who was on the NYU Law faculty for 56 years, died in July 2017. The brief filed on his behalf states, “In the months preceding his death, Professor Dorsen was engaged in preparing material for submission to this Court opposing the constitutionality of excessive partisan gerrymandering, which he viewed as a paramount threat to American democracy. Sadly, Professor Dorsen died before completing his work. Amici have pledged, in his memory, to complete Professor Dorsen’s unfinished project.” In addition to Neuborne, other NYU Law faculty members named as amici on the brief are: Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties Helen Hershkoff, Elihu Root Professor of Law Stephen Gillers '68, Fiorello LaGuardia Professor of Clinical Law Martin Guggenheim '71, Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry Emerita Sylvia Law '68, and Benjamin F. Butler Professor of Law John Sexton.
Posted March 20, 2019