When the Supreme Court passed up several opportunities to rein in partisan gerrymandering, Justice Anthony Kennedy’s purported reticence was the main story. Justice Kennedy, now retired, had all but invited these cases in a 2004 decision decrying state legislatures for “rigging elections” and pleading for a “workable” standard to specify when partisan electoral line-drawing goes too far. So on June 18th, when the justices disposed of challenges to gerrymanders in Wisconsin (Gill v Whitford) and Maryland (Benisek v Lamone) on procedural grounds, without discussing the merits, many said the court was delaying a reckoning because Justice Kennedy had lost his will.
But while Gill and Benisek were a disappointment for people who hoped the justices would do something to police the anti-democratic practice of politicians choosing their voters, rather than the other way around, they were no disaster. The unanimous rulings did not foreclose future claims that partisan gerrymandering violates the constitution. Gill did not even shut down Wisconsin voters’ argument against a sophisticated Republican effort to entrench Republican power in the state legislature. With only Justices Neil Gorsuch and Clarence Thomas demurring, Chief Justice John Roberts sent the case back to the lower court to give the plaintiffs another shot at proving they suffered “concrete and particularised injuries” from an electoral map that placed a “burden on their individual votes”. That’s effectively a 7-2 Supreme Court decision that partisan gerrymandering might be unconstitutional, if the right people sue.
That context is crucial as drama unfolds over perhaps the most lethally effective gerrymander that any state legislature has undertaken. In North Carolina, a state with more registered Democrats than Republicans, and in which Democrats had a 7-6 majority of congressional seats in 2011, electoral lines now all but guarantee that 10 of the 13 people elected to the House of Representatives will be Republicans. One member of the state assembly arguing for this distorted map in 2016 was disturbingly up-front about his end-goal: the only reason he endorsed lines sending 10 Republicans and 3 Democrats to Congress, he said, is because he didn’t “believe it’s possible to draw a map with 11 Republicans and two Democrats”.