Even though a three-judge panel struck down North Carolina’s congressional map this week, saying that it was politically gerrymandered, it’s not easy to prove that case, according to a KU Law professor.
“The Supreme Court in 2004 said that there is such a thing as partisan gerrymandering, but we’re just not quite sure how its proved,” said Mark Johnson, an election law and First Amendment expert at the University of Kansas. “For the last dozen or so years, there weren’t a lot of these cases. In the last couple of years, several have been filed, one in Wisconsin, another in Maryland and another in North Carolina.”
The question is, has the test that those courts used done the job of proving partisan gerrymandering? Johnson sees the proposed proof for the plaintiff has multiple parts.
“First, that there was intent to gerrymander, that the legislature, in drawing the lines, intended to keep one political party in power almost without regard to what the popular vote is. Second, the legislature has to be successful. In other words, there has to be a discriminatory effect, or discriminatory impact. Third, there can’t be another justification for the gerrymander.”
The problem North Carolina has is people who crowed too much about their accomplishment.
“There’s all sorts of evidence, mostly from statements of people who were involved in drawing these lines, that what they intended to do was draw the lines so Republicans would win more seats than they would otherwise win,” Johnson said. In fact, there was a statement I heard from one of these legislators that, I helped draw the lines so 10 of the 13 Congressional Representatives from North Carolina will be Republicans, only because I couldn’t draw the lines so that
11 Republicans would be elected.”
The line got a laugh, but it was considered proof that the gerrymandering was intended. North Carolina is almost a 50-50 state as a whole, so one would expect the electoral numbers in Congressional races to be closer to even.
“I would suspect that if the legislators in North Carolina had been more circumspect about things they said in public and knew they were being recorded, it would have been a lot more difficult to prove this case,” said Johnson. “I tell you, the statements are just so, for lack of a better word, incriminating. There were statements similar to that made by the legislators in Wisconsin. That case has to do, not with Congress, but with the state legislative districts. That’s the
one that’s before the Supreme Court right now.”
The judicial branch had to draw the lines in Kansas the last time around. It did that in 2012.