The News & Observer offers this interesting nugget in an article about the latest court filing linked to the federal court case challenging North Carolina’s congressional districts.
In their 40-page court filing, the map challengers contend that for more than three decades the U.S. Supreme Court “has explicitly recognized that partisan gerrymandering is unconstitutional” and cited a case in Arizona to bolster their claim.
In the ensuing years, one thing is clear about such partisan manipulation of voting boundaries: the technique has grown enormously. It has been estimated that, mainly because of redistricting along party lines, some 373 seats in the House of Representatives will be safe next November for the incumbents if they run again – some 85 percent of the total of 435 seats. Much of that has been attributed to the sweep by Republicans of state legislatures in the most recent elections, giving them broad control over much of the redistricting process – for their own chambers and for the House.
The Supreme Court has taken some notice of this phenomenon, deciding late last June that the voters of a state had the authority to take the redistricting process away from their state legislature and assign it to a non-partisan commission, precisely to get away from partisan control of the process. That is a trend that seems to be spreading among the states.
Still, the court has held fast in recent years to its position that the courts are not in a position to judge the constitutionality of partisan gerrymandering. [Emphasis added.]
The Constitution’s Lyle Denniston reports in the next sentence “that has just changed” because of a unanimous Supreme Court ruling in a Maryland test case in December. But the court’s opinion, written by the late Justice Antonin Scalia, dealt only with procedure. It allowed voters challenging Maryland’s Democratic gerrymander to take their case to a three-judge panel for a full trial.
As Denniston notes, “it will give the trial court – and, ultimately, the Supreme Court – the opportunity for a penetrating analysis of the effects of partisan gerrymandering on voters whose affiliations are disfavored.” But the ruling says nothing about the outcome of that “penetrating analysis,” and it certainly says nothing about an “explicit recognition” of partisan gerrymandering being unconstitutional.