Voting rights advocates and legal experts are keeping a close watch on an upcoming Supreme Court case that could have serious implications for the say people have in how they're represented in government. The case is North Carolina's Moore v. Harper, in which the state's Republican legislators have asked that the state's supreme court decision to throw out its gerrymandered congressional map be overturned.
Part of the argument stems from an unconventional reading of a clause in the Constitution that state legislatures and Congress are the only ones authorized to create rules for how elections are held. This understanding is considered a threat that could result in reinstating gerrymandered congressional maps and an inability to challenge discriminatory elections laws and practices.
Derek Muller is the Bouma Fellow of Law at the University of Iowa College of Law, where he teaches on topics related to election law and federal courts. Dan Vicuña is the national redistricting manager at Common Cause, a national organization focused on expansive voting rights and government accountability. They took some time to talk about the concerns around cases like Moore v. Harper, whether the 1965 Voting Rights Act offers sufficient protections to these efforts to concentrate elections power among legislators, and the harm caused by gerrymandering. (These interviews have been edited for length and clarity. For a longer version of these conversations, visit sandiegouniontribune.com/sdut-lisa-deaderick-staff.html.)
Q: There are a number of concerns being raised about how the current justices could rule in this case and what that ruling could mean for redistricting and election laws. What concerns come to mind for you with regard to this case?
Muller: I think the court is particularly interested in North Carolina's case because, while some state constitutions have expressed anti-gerrymandering provisions, North Carolina does not. The North Carolina Supreme Court decision was based on cobbling together four different provisions of the state constitution and saying, "This prevents the legislature from gerrymandering maps." So, when the Supreme Court is considering this case, the question is "Well, did the North Carolina Supreme Court go too far and take over from the legislature, power that is really supposed to be left to the legislature?" If the Supreme Court does that, it would have a big effect on the congressional maps in North Carolina; it could affect state courts in places like Pennsylvania, where they reached a similar decision about congressional maps. Then, there are questions about what might happen after that, and I'm a little bit more reluctant to guess the Supreme Court could do some of the more extreme scenarios that are being floated around out there.
Vicuña: Our main concern is that what the North Carolina legislature is looking for is the complete removal of oversight when legislators draw congressional districts. In this case, the state supreme court in North Carolina played an essential role in protecting voting rights by throwing out a clearly gerrymandered congressional map that discriminated against voters based on their political affiliation. The state supreme court used several provisions of the state constitution — including a free elections clause that provides even stronger protections for voters than the U.S. Constitution — and decided that, to manipulate voting maps violated essential voting rights of the North Carolina population. What North Carolina legislators are seeking is a very strained and literal interpretation of the U.S. Constitution's election clause to argue that legislators are given a superpower in the drawing of congressional maps or in the rules surrounding federal elections broadly that allows them to avoid any sort of adherence to state law or oversight by state courts. That has really dangerous implications for voting rights going forward.
Q: Part of the argument being used by the Republican legislators in North Carolina is an understanding of the Constitution's elections clause and the "independent state legislature theory." The clause says that state legislatures and Congress are authorized to determine how elections for senators and representatives are held. The theory argues that the term "legislatures" refers solely to legislators in the state, rather than the traditional understanding that the term refers to each state's general law-making process (which would include state courts or citizen referendums). If this argument is accepted, what could that mean for election laws in other states that reject gerrymandering?
Muller: Gerrymandering, in particular, the Supreme Court has already issued some decisions saying that it's OK to take the legislature's hands off the risk in process and give it to an independent commission. That's in an Arizona case from several years ago. They've also said that, while federal courts have no role to play in patrolling gerrymandering, state constitutions and state courts might, considering things like Florida, which has a very expressed anti-gerrymandering provision of its state constitution. In some theories, maybe all of those decisions would be overturned and there would be lots of other things that would come down from the Court that would call into question some of those precedents. I think that's pretty unlikely. I think it's more going to be the U.S. Supreme Court saying, if it finds in favor of the North Carolina legislature, that the state courts have to look to some more specific language in their constitutions and can't just cite some generic provisions to constrain the legislature, that sometimes the state courts are just going too far. Now, very few state courts have interpreted their constitutions to prohibit partisan gerrymandering — North Carolina and Pennsylvania are two of the outliers. In terms of gerrymandering, it wouldn't necessarily have a dramatic effect, but could certainly increase the likelihood of partisan gerrymandering in those states, compared to what the state courts have recently said about them.
Vicuña: Even under the best-case scenario for the North Carolina legislature in a victory, it could require that state courts are only given oversight power regarding redistricting if the state constitution explicitly says they have oversight power over redistricting in North Carolina, where the state supreme court interpreted very strong pro-voter protections to mean that the voters of the state are protected against partisan gerrymanders. There are other state constitutions that explicitly state that state courts may play a role, so maybe there's a version of a Supreme Court decision in this case that merely makes it harder for a lot of states to provide oversight over legislatures in congressional redistricting. A slightly worse scenario is a situation in which, no matter what state law says, state courts simply have no oversight role to play in what legislatures do related to federal elections. That may include eliminating state courts' ability to police gerrymandering, that may include state courts' ability to police broader voting provisions (whether a state decides to eliminate polling places in predominantly minority neighborhoods; whether they make it incredibly difficult, in a way that's discriminatory, to register to vote). In the most extreme version of this argument, but which follows from the logic they're trying to put forth, is that state courts have absolutely no role to play and providing no oversight in any rules that state legislators make in federal elections. It gives them a blank check to violate state law for federal elections, which makes no sense logically and has really profound implications for voting rights.
Q: In 2013, the Court ended the preclearance requirement of the 1965 Voting Rights Act for places with a history of racial discrimination in gaining prior federal approval before changing election laws (although Section 2 of the act remains intact, prohibiting racially discriminatory voting and election-related practices). What role could the Voting Rights Act have in continuing to prevent these gerrymandered districts and discriminatory changes to election law?
Muller: When we think about what Moore v. Harper might do, this North Carolina case, it doesn't mean that state legislatures get to trump federal laws and the Voting Rights Act is one of those laws. The Voting Rights Act, like many other federal laws, still limits whatever the North Carolina legislature does. Section 2 of the Voting Rights Act has been interpreted in recent years to require states to draw districts that give ideologically cohesive groups of racial minorities the opportunity to elect the preferred candidate of their choice in a district drawn in such a way that gives them high opportunity to do so. It's not partisan gerrymandering, it's thinking about histories of racial discrimination, existing racial polarization and voting, and whether or not the factors are set up in such a way to require legislatures to draw districts to give minority voters those opportunities. That's still intact. The Supreme Court is considering a question about how far Section 2 of the Voting Rights Act goes this year, in a case out of Alabama, but it provides additional guarantees for both congressional and state elections as far as redistricting goes.
Vicuña: The removal of Section 5 preclearance was a body blow to democracy. It was a way to ensure that changes to voting, or changes to voting maps, adhered to our basic values and didn't engage in racial discrimination. It was an efficient way to do so by providing a front-end protection that didn't require plaintiffs to go to court, go to the expensive process of bringing litigation on the back end and provided protections on the front end. Unfortunately, what we are now left with without preclearance is the sometimes inefficient and expensive process of going to court after something has already been passed and been implemented. That was certainly one assault on voting rights. There does, still, remain the ability to challenge maps for racial discriminatory purposes under Section 2; however, the Voting Rights Act does not cover partisan gerrymandering, which is why we went to the Supreme Court in 2019, to ask them to do something about this growing problem. The elimination of state court oversight would make it even more difficult to bring claims of discrimination on partisan grounds because the VRA just doesn't cover it. Only state courts, at this point, can do so. So, it creates a very difficult situation in which you're seeing, you can feel a whittling away of avenues for fighting back against anti-democratic measures in our voting systems.
Q: Can you talk a bit about the history of gerrymandered districts and the kinds of real-world implications they've had on minority groups?
Muller: Gerrymandering goes back to before the United States became a country (it's a very old practice), but when we think about racial gerrymandering, it's a little bit different in a couple of respects. One is, as a doctrine, it didn't really show up on the Supreme Court's radar until about 30 years ago. By then, it was challenges brought by White voters, challenging districts drawn to give advantage to Black voters, drawn in such a way to put Black voters in a district in North Carolina to give them the opportunity to elect a preferred candidate of their choice. Some of that's been reversed in recent years — this has tended to be racial minorities challenging districts that are being drawn to advantage White voters — but it just proves that it can go in either direction, whether or not legislators are doing so. Most of the time, the defense from legislators is, "Well, we're not really trying to do it on the basis of race, we're just trying to do it on the basis of partisanship. We want to advantage Republicans or Democrats, but it just so happens there's certain racial divides that arise when you start thinking about drawing those districts." More famously, there were some practices in the 1950s, before the enactment of the Voting Rights Act, when states or municipalities would draw districts or city boundaries to exclude Black voters from participating in political life. One of the famous cases is a case called Gomillion v. Lightfoot, where a city in the South, through an extremely complicated series of boundaries around the city that essentially kept all of the White inhabitants inside the city boundaries and all of the Black inhabitants outside of the city boundaries, which then skewed how elections happened within that city. So, we have some history of politicians drawing lines in ways to exclude communities of color. In recent years, the Voting Rights Act and racial gerrymandering have tried to hit a sweet spot where we want to ensure that all voters, regardless of race, are able to participate and have the opportunity to elect the preferred candidates of their choice without overly focusing on race or drawing districts in such a way that is offensive to the public because of the single-minded focus on race.
Vicuña: You'll see different examples around the country. In just the last redistricting cycle on the maps that were struck down in North Carolina, in state court, there was an example of the state's largest historically Black college. North Carolina A&T was just split right in the middle of the university by the Republican majority who clearly saw this concentration of Black voters as a threat to their political power.
Here, in Southern California, before the citizens' commission was created, there was a freak hailstorm in the Watts section of Los Angeles. At the time, when it was under a congressional map drawn by legislators, Watts was divided into three congressional districts. They needed quick emergency services because it was not something that community was prepared for, being it was Los Angeles. It was a huge surprise in terms of a weather anomaly, and they were being bounced around from congressional office to congressional office because no one member really felt responsible for that community. It took them a long time to rebuild.
We've also seen places like Alabama and Florida, where Black voters are packed into very few districts, maybe one or two districts that may stretch hundreds of miles. These communities have nothing to do with each other except for race, and it's for the purposes of ensuring that they have no influence on any surrounding districts; to give Black voters 80 to 90% majority victories and no impact over any surrounding districts. It's the ability to pack one party's voters, or are people of color, into very few districts. Or, to cut them up, slice and dice those communities, and spread them around different districts so that they have no real power or influence in any one district. It has really severe, real-world implications for their ability to have their basic needs met.
Q: From your perspective, why do these kinds of cases matter?
Muller: In politics and elections, we are picking winners and losers, and there's something unseemly to voters when the rules tend to benefit or harm one class of voters or candidates at the expense of another. At the same time, every rule has some kind of effect on the election. It can have some impact on who's able to vote and how likely a candidate is to win. Sometimes, we don't know what that is until after the election, but sometimes we have a pretty good guess, and partisan gerrymandering is one of those things. We can acknowledge there are lots of things that are just politics, if you will, that we're willing to endure and accept that some rules are just going to be influenced by political considerations. At the same time, we want a system that makes it easy to vote and hard to cheat, if you will, where people can participate freely and easily in the election system. That their votes will be counted and matter, while at the same time not being shoved aside or prevented from having influence because the rules are designed in such a way to reduce their influence in targeting those disfavored groups. It's important for us to have an open election system where people feel confident in the results precisely because the elections are decided by the voters and not by the rules that are hemming them in.
Vicuña: This case is about the ability to make your voice heard in the halls of power. Having advocates in the halls of power is essential to obtaining the essential resources you need in terms of health and safety, education, infrastructure, roads, parks; having an advocate who is looking out for your interests is just essential to a basic quality of life. In addition, the votes that people cast should translate to seats won — whether that be a political party's votes or different communities votes — and drawing districts in a way that the public is able to translate votes into seats is exactly what democracy is about. Being able to hold elected officials accountable when you're unhappy with their performance, to be able to throw the bums out come election time, is the essence of what democracy is all about. So, the manipulating of voting districts to prevent that from happening really subverts the very purpose of why we hold elections.
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