“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” one of us said in 2016, as the North Carolina legislature drew new congressional maps.
It’s a made-for-headlines statement, an apparent gaffe that reveals what everybody knows but nobody says. And on Tuesday, as the U.S. Supreme Court hears arguments in the landmark partisan gerrymandering case Rucho v. Common Cause, it will likely take center stage again.
That statement, though, was not a gaffe. It was a hyperbolic but necessary retort to ongoing litigation and the shifting goalposts imposed by a federal court.
You don’t need to agree with the statement, and you don’t need to support partisan considerations in redistricting. That’s not our intent in writing this. But you should understand the full story, because reaching conclusions based on one spoken sentence is rarely justified and never prudent.
Richard L. Hasen: The Supreme Court could make gerrymandering worse
In 2010, Republicans won majorities in the North Carolina legislature for the first time in 140 years (under maps drawn by Democrats). That victory empowered Republicans to draw new districts at the conclusion of the 2010 census.
In 2013, Democratic activists filed their first lawsuits against the maps drawn by Republicans. That began an endless parade of litigation, with arguments changing at every iteration but the end goal remaining the same: to persuade a court to draw new maps that favor Democrats.
Having successfully litigated against the Democratic majority under a racial gerrymander claim a decade before, legislative Republicans understood well the power of lawsuits to dismantle preferred maps. And so we set out to avoid losing the same sorts of racial gerrymander lawsuits as defendants that we had won years earlier as plaintiffs.
According to federal Judge Roger Gregory, we actually tried too hard.
The Voting Rights Act prescribes a remedy for states where the preferred candidates of minority voters cannot win because non-minority voters overwhelmingly choose a different candidate. The remedy is to draw electoral districts with more minority voters than non-minority voters—“majority-minority” districts.
So that’s what we did. We drew majority-minority districts, all but ensuring that minority-preferred candidates would win those seats. Why? Because that’s what the Voting Rights Act required.
Read: The Supreme Court finds North Carolina’s racial gerrymandering unconstitutional
In fact, the U.S. Supreme Court affirmed that interpretation just two years before we drew the maps. “Only when a geographically compact group of minority voters could form a majority in a single-member district” has the Court’s criteria been met, Justice Anthony Kennedy wrote for the majority. We also precleared our maps with the U.S. Department of Justice, led at the time by Eric Holder, which approved them.
But we still lost the case. That’s because Judge Gregory reasoned that, despite the evidence we produced, racially polarized voting in North Carolina wasn’t bad enough to require the majority-minority districts that we drew. Indeed, a judge from the same court wrote, “I find nothing flagrant or nefarious as to the legislature’s efforts here.”
But the court also wrote that the maps would have been acceptable if “politics, not race, was the driving factor.” It ruled the maps unconstitutional only because “the Court is not persuaded that the redistricting was purely a politically driven affair.”
Federal courts, including the Supreme Court, have long held that political considerations are fair game, and maps produced on the basis of those considerations are perfectly legal.
Having just been faulted by a federal court for unnecessarily using racial data, and instructed by that court and others that political considerations are just fine, we set out to make it clear to the world that we relied on traditional criteria, including politics—not race—when redrawing the maps at Gregory’s order. Direct court instruction and the law told us that doing so would end the matter.
Read: Arnold Schwarzenegger’s war on gerrymandering is just beginning
Thus Representative David Lewis’s line about political considerations in redistricting. In context, that quote covers two principles. First, politics is a legal consideration, while race sometimes is not. The map in question used politics and not race. Second, the map could have been more favorable to Republicans—11 to two instead of 10 to three—had we ignored the other traditional redistricting criteria, including compactness and contiguity.
And then, in 2016, the same Democratic activists filed another lawsuit, this time arguing that considering politics during redistricting is, in fact, unconstitutional. In an odd bit of legal gymnastics, the federal court of jurisdiction agreed with that argument, apparently contradicting its own decision earlier that year.
Before pouncing on one sentence, consider this backstory first. You don’t have to agree with us on the merits, but don’t demonize us based on 35 words and no context.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.