History shows redistricting presents no open-and-shut case for judges
Published November 9, 2021
By Mitch Kokai
Before N.C. lawmakers adopted a new set of election maps, critics already had gone to court to block them. A day after legislators approved new maps, another lawsuit arrived. More legal challenges could be on the way.
The suits open the latest chapter in North Carolina’s ongoing story of courtroom battles over redistricting.
To the extent that critics label the new maps overly partisan, they will likely pursue their claims in state court. That’s because the U.S. Supreme Court has shut the door on federal cases claiming partisan gerrymandering.
In the 2019 case Common Cause v. Rucho, focusing on North Carolina’s congressional districts, a 5-4 majority of the nation’s highest court tossed out a partisan gerrymandering case. Justices ruled that courts should avoid second-guessing political decisions tied to drawing election maps.
Left-of-center critics blasted the ruling. Some characterized the high court as ignoring established precedent.
Yet few of those critics said much about the case that inserted the U.S. Supreme Court into decisions about electoral redistricting in the first place. A recent American History magazine article about that case reminds us that election maps have generated constitutional consternation for decades.
“No case has tested the justices of the U.S. Supreme Court more than 1962’s Baker v. Carr,” writes Daniel Moskowitz. “The Court had to hear a second set of oral arguments six months after the first, then hand down six opinions for eight justices. The ninth justice, Charles Evans Whittaker, found trying the case so upsetting he had a nervous breakdown and skipped the final vote. He resigned right after the decision and soon after died.”
Now almost 60 years old, Baker v. Carr emerged from our neighboring state, Tennessee. At the time of the suit, “Memphis, Nashville, Knoxville, and environs had 63% of Tennessee’s people but only 13 of 33 state Senate seats,” Moskowitz writes. “A rural voter enjoyed disproportionate clout.”
The Tennessee constitution called for redistricting every 10 years, but districts had not changed since the 1900 census. “Rural lawmakers were using their legislative majority to starve cities with skinflint outlays for public needs,” according to the article. “The condition was nationwide, with urbanites shortchanged in as many as 40 states.”
A 1946 U.S. Supreme Court opinion in Colgrove v. Green had labeled redistricting a “political question courts were to eschew.” But that didn’t stop the critics from trying again to insert courts into the politics of redistricting.
Note that the conditions in mid-20th-century Tennessee were far different than those in North Carolina today. None of our legislative districts deviates more than 5% percent from ideal population sizes. Our congressional districts are designed with even less variation in population.
Even with a much clearer case of gerrymandering in 1962 than any presented in courtrooms today, the Supreme Court of that era had mixed feelings about taking action.
“In conference, the justices split harshly, haranguing one another,” Moskowitz writes. Four justices backed mandatory redistricting. Meanwhile, “Felix Frankfurter, who had written the Colgrove decision, was adamant about upholding its ban on federal court action; he feared that too much intervention in everyday life would cost courts the public’s trust.”
“Tom Clark hesitated to let federal courts wade into what he saw as political disputes, and Whittaker, though sympathizing with those for redistricting, would not lend a fifth vote to override Colgrove,” according to the article. “Potter Stewart ended the discussion by saying he could not make up his mind.”
That’s not exactly a ringing endorsement of federal court intervention in disputes over election maps.
In October 1961, “in the court’s first-ever morning session,” justices took a second crack at the case. Six months after the initial debate, Stewart and Clark were now leaning toward joining the four justices who wanted courts to force new election maps for Tennessee.
To secure their votes, Chief Justice Earl Warren assigned the Baker v. Carr opinion to Justice William Brennan, rather than one of the two justices who had been advocates of judicial action back in 1946. Brennan ended up focusing on “just what constituted a political question,” exploring six different factors.
The decision did not order Tennessee to redraw its election map. It did allow challengers to pursue their case in federal court under a 14th Amendment claim.
The opinion was far from definitive. “That careful solution garnered six votes, but three added their particular views,” Moskowitz writes. “Stewart insisted that the ruling still left lower courts free to OK a rational apportioning scheme not based on population. [John] Harlan and Frankfurter each wrote dissents.”
“Frankfurter’s was his final opinion in 23 years on the court; he suffered a stroke seven days after Baker was decided and four months later resigned.”
Baker v. Carr didn’t end the story of the U.S. Supreme Court and redistricting. The 1962 ruling paved the way for many more decisions during the next six decades. Disputes in North Carolina have generated many of those cases.
Moskowitz’s history lesson reminds us that courts have long struggled with the role they should play — if any — in forcing elected officials to redraw election lines.
It’s a struggle that’s likely to continue with the new set of N.C. election maps.
Mitch Kokai is senior political analyst for the John Locke Foundation.