Will the Supreme Court Finally End Gerrymandering?

Last fall, Michigan voters decisively approved Proposal 2, a ballot initiative to empower an independent state commission to shape legislative districts in place of partisan lawmakers. This moment was a model for the nation: an electorate declaring that it refused to be chopped up by a party seeking to protect its own power. If all it took was a vote to stop a state from being “gerrymandered” — named both for the reptilian shape of a Massachusetts district in 1812 and its governor at the time — why doesn’t every state follow suit?

For one thing, not every state has the option to seize control of the power to redistrict. North Carolina, for instance, has to rely on the courts. Three years ago, a federal court ordered North Carolina’s Republican-controlled General Assembly to draw a new district map, ruling that the map at the time was, essentially, too racist to be Constitutional. The replacement map was also too partisan to be Constitutional, violating the First and 14th Amendments, according to subsequent rulings by a federal three-judge panel. In January, the Supreme Court agreed to hear the case, Rucho v. Common Cause, alongside another, Lamone v. Benisek, centering on an unconstitutional Maryland map that benefited Democrats.

Allison Riggs, an attorney who leads the voting rights program at the Southern Coalition for Social Justice, made her case before the Supreme Court on Tuesday for the end of North Carolina’s partisan gerrymander. Riggs is no stranger to the issue. Three years ago she successfully challenged the North Carolina voter-ID law that an appeals court said targeted African-American voters with “surgical precision.”  Riggs also appeared before the Court last year to argue Abbott v. Perez, a Texas case in which earlier rulings determined that Congressional and state maps discriminated against African-American and Latino voters. Riggs lost that case when the conservative Justices issued a 5-4 ruling and reversed the earlier rulings.

The ruling won’t come until later this summer. Speaking with Rolling Stone Wednesday afternoon,about 24 hours after presenting her oral argument in the North Carolina case, Riggs says felt better about things this time around.

How do you think that went?
I think it went as well as we could have hoped for. I saw a pretty marked difference in the kinds of questions that [Chief Justice John Roberts] asked yesterday compared to last year. When I argued the Texas case [Abbott v. Perez], he had some real hostile questions. He’s very skeptical that intentional racial discrimination really exists. And he asked some pretty rough questions in the Wisconsin partisan gerrymandering case [Gill v. Whitford].

This year, his tone was completely different. I think perhaps it was the function of repetition, hearing some of the detail again. And I think it might have been a function of how extreme [North Carolina attorney] Paul Clement’s arguments were. He wasn’t just saying these [gerrymanders] are constitutional. He was playing all of his cards on the argument that this is non-justiciable — doesn’t matter if it’s legal or not, the Court can’t rule on it. And I don’t think that was well-received.

Justice Kavanaugh asked some all-over-the-place questions, which made it hard to read where he was. If they negotiate some sort of very narrow ruling, it would not surprise me if the Chief could pull Kavanaugh off so it was a six-three decision.

In your favor?
Yes. I don’t see Kavanaugh being the fifth vote with the chief going the other way. I would describe my position, certainly, as cautiously optimistic. And, truth be told, the thing we want to avoid more than anything is a ruling of non-justiciability. That takes this off the table forever.

Back to Clement — his argument was that the Supreme Court cannot rule on this case at all?
Yes. It’s a political question reserved entirely to the legislative branch. And the Court is not allowed to make any decisions on that — which is a complete disconnect from 60-some years of gerrymandering jurisprudence.

The court’s been ruling on gerrymandering cases, which inevitably have political elements. Redistricting has political components to it. But that doesn’t mean that when districts are malapportioned or unevenly divided such that some votes count more than others, that the Court doesn’t have to rule on equal protection claims. It was a strategy call that I hope backfires.

What precedent were you relying on as you made your case?
Certainly we were pointing the Court to the “one person, one vote” cases, the racial gerrymandering cases, the vote-dilution cases, under the Constitution — these are all cases where politics have been invoked as the defense. And in each of those, the courts have intervened to vindicate constitutional rights. To do something different here is remarkable.

And we relied on Davis v. Bandemer in the Eighties, when the Supreme Court said these cases are within the purview of the Court. We don’t know how to judge a constitutional use of politics from an unconstitutional gerrymander, but we know that we have the right to do it. For them to do what Paul Clement asked them to do, they’d have to overrule Bandemer. You know that they don’t want to belittle their previous cases.

Most of my argument yesterday was focused on the fact that this is a very limited and precise test. We’re not asking you to get involved and to police the politics in every redistricting case. We’re asking you to invalidate the extremes, the cases that really are just so outrageously unfair that voters can’t use the normal democratic and political processes voting to fix them. These districts are so rigged, that even with the Democratic-wave election — signaling huge change and support for candidates in North Carolina — we still have a 10-3 map

The Court often wants to leave things in the hands of the political processes. But the day has come where the partisan gerrymanders are so sophisticated that these aren’t self-correcting. The courts exist as a check on the other branches, particularly when it comes to indicating the individual constitutional rights of the people. And that’s what we need them to do now. Just to set some boundaries, some outer limits of what is acceptable. There’s a real political consequence to doing nothing. So as much as the Chief [Justice] wants to avoid the Court appearing political, doing nothing here is going to be far worse.

We see the Republican Party becoming whiter and whiter. And you can’t erase the fact that when they divide things by partisan gerrymander, they are playing more toward a whiter audience. How much did that come up in your questioning?
It didn’t. We are not blind to the racial justice implications of partisan gerrymandering. They took a racial gerrymander and turned it into a partisan gerrymander. But we also have to deal with the Court that we have now.

And the Chief Justice voted to strike down Section Five of the Voting Rights Act. He voted to reverse the district court in my Texas case last year. He’s just deeply skeptical that legislatures act in a racially discriminatory way. He and I had this extended exchange and argument last year. He thinks it means that I’m calling them bigots, and they have deep racial animus in their hearts. Race and politics are deeply entwined. You can’t extract them.

But the Court has changed remarkably in the last year. We’re not gonna stop fighting race cases. But I think that the Chief, in particular, will have a different reaction to this case framed in terms of partisan greed run amok than he would if it were explicitly framed in the context of race. But we know what the implications are. The Southern Strategy is very successful. And it extends outside the South. You see this all across the country. What we land on is that there will be profoundly positive racial justice implications if partisanship stops being a defense for racial discrimination.

What did the left-leaning justices say yesterday, if anything, that you felt may be constructive to your case?
Justice Sotomayor read a couple of the amicus briefs that were really excellent. It was wonderful to hear her referring to some of those. Some of the justices, you know, are skeptical about some of the statistics. And [Sotomayor] said, “Look, we make decisions about nuclear power plants based on these same sort of risk assessment and predictability measurements. If we can do that, when there’s nuclear devastation at stake, certainly we can do it when it comes to predicting election outcomes.”

I was really impressed with Justice Ginsberg’s response to Paul Clement. He said, “If you rule in this case, if you establish a rule for a partisan gerrymandering case, you’re going to enter the political thicket and never be able to exit.” And she’s like, “Yeah, we heard those exact same arguments in the dissent in the first ‘one person, one vote’ case. And that never happened.” Justice Kagan was her typical, strategic, mediating force.

Do you think this case reaching the Supreme Court will help people understand the drastic power that gerrymandering has over democracy and their lives?
I hope so. I hope that they understand that this isn’t just, you know, people being litigious and trying to second-guess everything. But that politics, that power — especially unchecked power — tends to be pretty corrupting. And it can affect both sides, Democrats and Republicans alike. In Maryland and North Carolina, you see examples of districts that are so rigged, that it doesn’t matter the level of turnout by voters. It doesn’t matter how much popular opinion or voter sentiment has changed. These districts are just locked in. It makes a farce of the political process and reinforces voter apathy.

I think it was to our great advantage to have a Republican gerrymander and a Democratic gerrymander up there together. I hope it highlights that this is the kind of greed and power-grabbing that, if we don’t say something is out of line, is just gonna keep getting worse.

Did you find the justices treating the arguments from your case and the Maryland case differently, based upon the fact that they were Democratic and Republican gerrymanders?
A couple of the justices are obviously very familiar, maybe more familiar with Maryland geography than they are North Carolina geography. The Chief and Justice Kavanaugh, I think, had some pointed questions about the fracturing of communities of interest in Maryland. And you could read that as them being more hostile to a Democratic gerrymander. I tend to think it’s just because they know Maryland better. It’s closer. I think it was Justice Kavanaugh who was rattling off different counties that had been split or grouped together. I don’t know that it was him necessarily being any more hostile to the Democratic gerrymander. I just think he knew the area better. Whereas the further outside the beltway you get, the less familiar they are the implications are of lumping in a farming community with the outskirts of Baltimore.

Anything you listened to or watched to psych yourself up?
I have a playlist on my phone that I use before a big argument, it pumps me up and gets my blood flowing. But mostly, the prep is just a lot of notes. And it’s a bit of a masochistic exercise, right? You subject yourself to getting beat up over and over and over again, ‘cause that’s the best preparation.

I think you either have to like being in the hot seat or you don’t. I really enjoy being up there. I really enjoy being tasked to defend my position and being pressed to think on my feet and pivot off of tangential or irrelevant questions, to get back to what I want to communicate in a limited amount of time. It’s fun for me. I’m grateful, it’s a ton of work, and it takes a team effort.

What’s on the playlist?
I usually keep that very private. But there’s a fair amount of Lady Gaga on there.

This conversation has been edited for length and clarity.