To the Editor:
I APPRECIATE Tara Helfman’s article highlighting recent developments in the complicated struggle over the future of electoral gerrymandering (“Is the Gerrymander on Its Way Out?” January 2017). Some additional facts might help readers cultivate an even better understanding of the issue.

First, Helfman notes U.S. the Supreme Court justices’ “palpable” frustration during oral argument over recent redistricting cases from Virginia and North Carolina. To some extent, those justices have only themselves to blame. That’s because they have not set a clear standard differentiating an acceptable amount of partisanship in drawing election maps from unconstitutionally excessive partisanship.

Helfman’s article notes that the Supreme Court “declined to invalidate” a “meandering Pennsylvania redistricting map” in 2004. Left out of her analysis was the fact that five of the nine justices might have struck that map down had they agreed on a means. While the court’s so-called conservative bloc agreed with the late Justice Antonin Scalia that partisan gerrymandering was a political issue that courts ought not address, the opposing liberal bloc disagreed. It proposed potential tests for determining whether a partisan gerrymander was unconstitutional.

Perennial swing vote Anthony Kennedy muddied the constitutional waters by agreeing with the liberals that courts could determine whether an election map was unconstitutionally partisan, while simultaneously rejecting all of their proposed tests. So foes of partisan gerrymandering have spent the past decade searching for a different test that would win Kennedy’s fifth vote to their cause.

Elena Kagan didn’t sit on the Supreme Court in 2004, so her recent quip that “if it’s politics, it’s fine” threw a curveball at gerrymandering critics. If Kagan follows Scalia’s lead, then partisan gerrymandering might end up with a longer legal shelf life.

Still, it seems likely that Kagan, Kennedy, and the rest of the court will have a chance at some point to address directly what Helfman has described as a potential “holy grail of political law,” a mathematical formula known as an “efficiency gap.” That EG served as the basis for a federal court throwing out Wisconsin’s latest election maps, and the same type of analysis could play a role in my home state of North Carolina.

The McCrory v. Harris case—which Helfman analyzes with skill—deals with “old” N.C. congressional districts. The state conducted its most recent congressional elections under maps drawn in 2016 in response to the lower-court ruling in McCrory. It’s hard to project how a high court ruling in McCrory will affect North Carolina’s maps moving forward, since the state General Assembly already has completely redrawn the two districts struck down as unconstitutional racial gerrymanders.

Both the NC-1 and NC-12 challenged in McCrory have long lives in state political history. Democrats who controlled the General Assembly in the early 1990s drew both districts to comply with the George H.W. Bush Justice Department’s order that North Carolina draw two majority-minority districts. At the time, the snake-like NC-12 and the octopus of NC-1 were designed to elect minorities while enabling Democrats to continue winning as many of the state’s other congressional elections as possible.

When Republicans took control of the General Assembly after the 2010 legislative elections, they maintained the same basic shapes of NC-1 and NC-12, secure in the knowledge that both districts had survived two decades of previous court challenges and reviews from both GOP and Democratic federal Justice Departments.

North Carolina used some form of the now unconstitutional NC-1 and NC-12 in every state congressional election conducted from 1992 to 2014. Only after Democrats’ ideological allies were able to convince federal judges that Republican racial gerrymandering was somehow less constitutional than Democratic racial gerrymandering did those districts disappear.

And disappear they have. Faced in 2016 with a federal court order to scrap NC-1 and NC-12, state lawmakers decided to draw their latest congressional election maps with no consideration of voters’ race. Instead, mapmakers spelled out clearly—and publicly—that the maps eventually used for 2016 elections were designed to ensure a partisan advantage for the GOP.

The McCrory court found nothing wrong with the maps. But that didn’t stop the N.C. Democratic Party, current and former Democratic legislators, Common Cause, and the League of Women Voters from filing a pair of lawsuits challenging the new, explicitly partisan maps. The LWV suit specifically cites the “holy grail” EG analysis in calling for courts to throw out North Carolina’s latest districts.

My employer is a free-market, limited-government think tank that focuses on public policy in North Carolina. We are members of a bipartisan coalition that supports election redistricting reform. However, we are not parties to any redistricting lawsuits. And I personally take issue with lawsuits asking courts to throw out maps drawn under longstanding judicial precedents permitting partisan gerrymandering (Kagan’s “if it’s politics, it’s fine” standard). North Carolina deserves a better redistricting process. It does not need to have that process mandated by—Helfman’s appropriate words—“judicial fiat.”

Helfman’s article does a great job spelling out the intricacies of the gerrymandering issue. I hope this letter conveys that the level of complexity is even greater than Commentary readers might have imagined.
Mitch Kokai
John Locke Foundation
Raleigh, North Carolina

I AM GRATEFUL to Mitch Kokai for his thoughtful and illuminating letter. I agree with his observation that the federal judiciary bears at least some responsibility for the current state of affairs. In fact, I would go so far as to say that it bears much of the responsibility for the juridical confusion over the partisan gerrymander.

Partisan gerrymandering may be frustrating, ugly, manipulative, and even, at times, unconstitutional. But not every constitutional violation is susceptible to judicial remedy. Article 1, Section 4 of the Constitution expressly commits the redress of problems relating to electoral districting to Congress, recognizing the power of state legislatures to draw districts for federal elections but conferring upon Congress the power to “make or alter” those districts. Indeed, at the time the Constitution was drafted, contemporaries understood the congressional power to “make or alter” those districts to be a bulwark against gerrymandering. As one delegate to the Massachusetts convention warned, states

might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election.

Note that Article I does not vest the remedy to gerrymandering in the judiciary, but in Congress.

Apportionment entails technical questions about demography, voter behavior, and political geography, in addition to complex theoretical questions about the meaning of political representation. These are matters that elected legislators, not judges, are best equipped to examine and assess. But even if we were to assume that the federal judiciary had at its disposal the means and expertise to weigh these considerations fully, it is not clear that it also has suitable judicial remedies at its disposal.

Nevertheless, this has not deterred well-intentioned judges from adopting what Justice Scalia once termed (in a different context) a “Mister Fix-It Mentality . . . [a] mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.”

Members of the Supreme Court have undeniably muddied the juridical waters with their flailing attempts to apply a judicial “fix” to an essentially political problem. But at the end of the day, congressional inaction on the matter tempted judges to wade into that morass in the first place. The proper place for frustrated voters to apply the screws is not on the judiciary, but on the legislature.