Common Cause v. Rucho
By Leland Ware, Louis L. Redding Chair and Professor of Law, University of Delaware
In Common Cause v. Rucho a three-judge panel held that North Carolina’s redistricting plan relied too heavily on partisan affiliation in drawing voting districts. The plan violated citizens’ rights under the Fourteenth Amendment’s Equal Protection Clause, the First Amendment and Article I of the Constitution. When Republicans became the majority in the North Carolina General Assembly in 2011, they redrew voting districts using the 2010 Census, They relied, in part, on data showing the racial concentrations in areas within the state.
In North Carolina, as in many Southern states, there is a strong correlation between African Americans and Democratic voters. Using the racial data Republicans packed Democratic voters into fewer districts. A lawsuit against that plan argued that the Republican maps had actually intended to dilute black votes. A federal court struck the plan down in 2016. That ruling was affirmed by the U.S. Supreme Court.
District lines were subsequently redrawn using partisanship as the primary criterion for the new maps. The legislative defendants did not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. The challengers argued that the plan violated the Equal Protection Clause of the Fourteenth Amendment because it discriminated against non-Republican voters, the First Amendment, because it discriminated against voters based on political expression and Article I, because it interfered with the right of the people to elect their representatives.
The Court held that a partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. The plaintiffs used statistical models to demonstrate how slanted the plan was. They focused on the “efficiency gap” which is the difference between the parties’ wasted votes in an election, divided by the total number of votes cast. If the efficiency gap is large enough (7% or higher), one party can hold a systematic advantage.
The calculation requires totaling, for each party, the number of votes cast for the losing candidates in district races along with the number of votes cast for the winning candidates in excess of the 50% plus one votes necessary to secure the candidate's victory. The resulting figure is the total number of "wasted" votes for each party.
Wasted votes come in two forms: lost votes cast for candidates who are defeated and surplus votes cast for winning candidates in excess of what they needed to prevail. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own votes. This produces a large efficiency gap. In a state with perfect partisan symmetry, both parties would have the same number of wasted votes.
When districts are gerrymandered voters don’t pick their elected officials; politicians pick their voters. This is not how a democracy is supposed to operate. In this case the Court held that the evidence proved that the General Assembly had an intent to subordinate the interests of non-Republican voters and entrench Republican domination of the state’s congressional delegation. The judges granted the General Assembly another chance to draw maps, but gave them until January 29th to submit a plan.
Stay tuned. In October of 2017, the Supreme Court heard arguments in a case involving a state legislative map in Wisconsin that was invalidated for unduly favoring Republicans. The Court has agreed to consider a lawsuit filed by Republicans over a Maryland congressional district drawn by the Democratic legislature. A decision in the Wisconsin case is expected by June.