'A Tale Of (At Least) Two Gerrymanders'

At the same time congressional committees are investigating allegations of Russian meddling in the 2016 election, the judiciary has been grappling with another critical challenge to American democracy: the preponderance of partisan and racial gerrymandering. The manipulation of district lines to create electoral advantage is not a new problem. In the early history of our country, Patrick Henry famously tried to draw congressional district lines that would keep James Madison from winning a seat in our first congressional elections. But courts today face the specter of elected officials and party officers using high-end technology and increasingly fine-grained data about voters to create maps that lock in their advantage and shut out opponents for years. Recent rulings and pending litigation in both district courts and the U.S. Supreme Court could have a significant impact on the balance of power at both the state and federal level on the new round of redistricting after the 2020 census. North Carolina may be ground zero, the first piece of a doctrinal puzzle that ends, hopefully, in fewer gerrymanders that distort democracy.

The Tar Heel state has been in the news a lot. In 2013, it passed an omnibus law, H.B. 589, 2013 Gen. Assemb. (N.C. 2013), imposing a wide-range of restrictions on voting that a federal appeals court concluded was intended to discriminate against minority voters. North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016). That bill and the subsequent lawsuit came on the heels of the state's controversial 2011 redistricting cycle which has raised claims of both a racial and a partisan gerrymander.

In Cooper v. Harris, formerly McCrory v. Harris, where plaintiffs alleged that Republican legislators illegally "packed" African-American voters in two congressional districts during the last redistricting cycle, a three-judge panel held that race unconstitutionally predominated in the design of those districts. Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016), aff'd by the Supreme Court on May 22, 2017, 137 S.Ct. 1455 (2017). This case is important because it turns on its head the legal doctrine that had been used to dismantle districts that were perceived to give minority voters an advantage. In this case, the allegation was that minority voters were being injured because there were too many minority voters in the district, resulting in less influence overall. In many prior cases, districts...