How to police gerrymanders? Some judges say courts can’t.

WASHINGTON — From defining obscenity and deciding whether a search or seizure is unreasonable to deciding how quick a speedy trial should be, courts often decide legal matters and interpret opaque constitutional language.

And there is the issue that some judges claim to be beyond their competence to judge. It was put back on display last week in North Carolina.

The North Carolina Supreme Court has said that even the worst gerrymanders — in this case, partisan maps of the state’s General Assembly and its 14 congressional districts — can’t decide when to cross the line between crooked but legal and unconstitutional. Additionally, the justices said, the quality of any court order would “complicate the judiciary in every local election in every county, city and county across the state.”

Even though the state’s electorate is almost evenly split between the two major parties, the result left the GOP political dominance in the Republican-led Legislature to draw new maps for the 2024 elections.

Under its current court order, North Carolina now elects seven Democrats and seven Republicans to the U.S. House. Maps drawn by a Republican legislature can be 10 Republicans to four Democrats, or 11 to three. The only solution is to vote the dominant party into power using maps drawn without judicial review.

The 5-to-2 decision in the Republican-led court, which came along party lines, pointed to a Democratic-led court ruling a few months ago that said such lines could — and should — be drawn. In that sense, North Carolina’s ruling reinforced a sharp partisan divide between judges who believe unfair political maps should be policed ​​and those who don’t.

The U.S. Supreme Court also ruled in a 5-to-4 split in 2019, decades after it suggested it could not lay down a legal standard to limit partisan gerrymandering, although state courts could.

It’s difficult to separate party loyalties from the positions of legal experts, said Paul M. Smith said.

“One explanation is that the courts will decide election-related cases based on who they help,” he said. “Some days, I’m cynical enough to believe it.” He added that it is not very easy to tell whether it is conscious in court decisions.

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Nate Persili, a Stanford law school professor and expert on election law and democracy, says any standard for judging partisan gerrymanders must be beyond reproach.

“The answer is always that you pick winners and losers,” he said. “Unless we come up with some kind of clear mathematical test, I respect the argument that the judges’ political preferences could creep into the process.”

Adjudication of the constitutional power of the Legislature to set political boundaries is a difficult task. In 1962, a US Supreme Court Justice, Charles Evans Whittaker, decided the historic redistricting case Baker v. Carr inquired, A nervous breakdown ensued He abstained from the final vote during the court’s deliberations.

But some say it can’t be done because fair district lines are difficult to draw.

“I think that’s intellectually dishonest and intellectually lazy,” Rebecca CedelaA political independent and member Michigan Free Citizens Rehabilitation Commission, said in an interview. “We had a commission of 13 randomly selected voters from various educational backgrounds, and somehow we managed to come up with reasonable standards.”

Michigan commissioners drew their first maps since the 2020 election, following an order not to give any party a “disproportionate advantage.” They relied on several statistical metrics to meet that standard. But overall, they concluded that the proportion of votes for seats won statewide should fall within five percentage points of the state’s political preferences: 52 percent Democratic, 48 percent Republican.

In practice, Ms Szetela said, the maps cut closer to the calculated partisan divide.

However, some experts say it’s impossible to reliably create a fair standard.

Daniel H. Lowenstein, an election-law expert at the UCLA School of Law, said partisan gerrymanders should be regulators of how politics actually works. He said he chose such an education when he served as California secretary of state in the 1970s and later ran the state. Fair Political Practices Commission.

“There’s nothing in the constitution that says elections have to be fair, and that’s a good thing because different people have different ideas about what should be fair,” he said.

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Peter H. ShuckProfessor Emeritus of Law at Yale wrote a comprehensive analysis on the topic, “thick thickness,” in 1987. “I don’t see any objective criteria that are authoritative in judging whether a gerrymander should be supported or not,” he said.

Some other state courts have set and applied standards for partisan gerrymandering. Pennsylvania was the first state Beat the partisan gerrymanders In 2018, and the Alaska Supreme Court The lower court affirmed the judgment It said last month that the gerrymandered state Senate seats violated the state constitution’s equal protection clause.

Many voting rights advocates say the same computer-driven advances that enable today’s radical gerrymanders make it possible to track them down.

In particular, software programs can now be developed Thousands and millions Maps of hypothetical political districts, each with slight variations in their boundaries. Using statistical measures, those graphs can be compared to competing graphs to measure their bias.

In actual court cases, the technique shows that some gerrymandered maps produce results that are more unbiased than 99 percent.

MNon-partisan policies have improved, social scientists use data analytics to tease out the partisan impact of map changes. A scale, called Performance gap, which calculates how much of a party’s votes are wasted when its voters are disproportionately packed into a district or carved up among several. another, Party biasIt measures the effectiveness of a gerrymandered map by calculating how many seats the same map would give each party in a hypothetical election in which voters are split 50-50.

There are many more, each with its drawbacks. For example, voters sort themselves out geographically, with urban areas packed with Democrats and rural areas with Republicans, for reasons that have nothing to do with partisan gerrymandering. And some metrics are useful only in specific situations, such as in states where party support is closely divided.

In a 2017 Wisconsin partisan gerrymander case hearing, Chief Justice John G. Roberts Jr. called such metrics “sociological gobbledygook.” But then, much of the American judiciary bears the same stamp, said Nicholas Stephanopoulos, a Harvard University law professor who has been a leading advocate of standards for judging partisan gerrymanders.

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“In any suffrage case, people have to account for racial polarization, which is a much more complicated calculation than the performance gap,” he said. “You have to calculate the summation of the districts. You should evaluate voting patterns for minority voters and white voters.

“Certain degree tests are ubiquitous in constitutional law,” he added, and nothing distinguishes a partisan gerrymander case.

Mr. Stephanopoulos and others say that drawing a line between permissible and illegitimate political maps is not so difficult. Courts have made similar rulings in cases alleging racial bias in redistricting, he noted. After the one-person, one-vote ruling in 1964, justices quickly set a limit — 10 percent — on how much political districts could deviate from the new requirement of substantially equal populations.

Some gerrymandering criteria have already been suggested. For example, a political map may be considered constitutional unless acts of discrimination are uniformly argued against it. At that point, the body that drew the map must prove another compelling reason for the way the boundaries were drawn.

Critics such as Professor Loewenstein argue that any dividing line between unfair and fair maps has undesirable consequences: each successive map may be drawn to extract as much partisan gain as possible, but fall short of the legal standard for rejection.

“The ultimate question,” Professor Shuck said, “is how crude a fit should a court be willing to accept?”

Again, he pointed out, the U.S. Supreme Court and the North Carolina Supreme Court have answered that question: They’ve ruled that future political maps will be as crude as their makers want them to be.

“A refusal to apply a rule is still going to validate or invalidate what politicians have done,” he said. “There is no perfect innocence, no virginity.”

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