By Noah Feldman
It’s great news that the North Carolina Supreme Court struck down partisan gerrymandering under its state constitution. The ability of states to read their own constitutions differently from the federal constitution is part of what make states laboratories for democracy. And no experiment is more dangerous for the future of democracy than highly effective, computer-modeled partisan gerrymandering.
But don’t get too excited about the prospect that lots of states will overcome partisan gerrymandering through state judicial action.
In practice, a state Supreme Court is only likely to reverse a partisan gerrymander when the state court is controlled by a different party than the one that controls the state legislature. That can happen, as it did in North Carolina. But when it does occur, it mostly down to luck.
In eight states, Supreme Court justices are actually themselves chosen in partisan elections. One of those is North Carolina. (Two additional states elect their Supreme Court justices using a combination of partisan and nonpartisan means.) So the fact that a Democratic majority state Supreme Court overturned the Republican legislature’s partisan gerrymandering is mostly a function of the quirky fact that North Carolina had a majority of Supreme Court Democrats at a moment when its legislature and governorship were in the hands of Republicans.
Judicial elections aren’t themselves easy to gerrymander, because they are statewide. But they are susceptible to various kinds of partisan maneuverings. (Only seven states don’t hold any kind of judicial election.) In general, elections tend to connect the justices to the state’s political apparatus. That might make a state Supreme Court controlled by the minority party more likely to overturn a partisan gerrymander by the other side. But it also essentially ensures that a court controlled by the state’s majority party would uphold a gerrymander.
In states where the justices are appointed by the governor, rather than elected, it is always possible that the semi-random drift of judicial appointments and life tenure will produce a state Supreme Court majority of a different ideological flavor than that of the party controlling the legislature at a given moment. The same thing has happened in the past on the U.S. Supreme Court. Yet on the whole, a state with a durable partisan majority at the state level is likely to have a state Supreme Court dominated by the same party. Governors tend to pick their own, and in any case they need to get their state judicial picks past state legislatures’ confirmation processes.
That means most of the time, state supreme courts won’t be very likely to overturn partisan gerrymanders.
The interplay of federal and state constitutions is relevant here. The reason opponents of partisan gerrymandering fought a decades-long battle to convince the U.S. Supreme Court to rule partisan gerrymandering unconstitutional was precisely that they didn’t trust the state courts to solve the problem piecemeal — because state courts so often reflect the configuration of political power at the state level.
But the advocates lost in a 5-4 decision this past June, saying that federal courts don’t have the power to hear such cases. Given the current makeup of the Court, that defeat was almost certainly generational.
Relying on state supreme courts to do what the U.S. Supreme Court would not do is thus a very distant second-best. The North Carolina victory is at most a consolation prize — and as consolation prizes go, not even a very good one.
In the end, the only solution to the problem of gerrymandering is if the voters themselves decide enough is enough. Of course, the whole point of partisan gerrymandering is to make it exceedingly difficult for voters to express their preferences by giving a systematic advantage to the party in power. That’s what makes it such a scourge of democracy.
The option that leaves voters is to introduce and pass state level referendums that would impose nonpartisan district design on their states. Referendums aren’t looking all that good in these populist days, especially to anyone who is watching the Brexit debacle unfold. But the truth is that Progressive-era reformers introduced the whole idea of the referendum into U.S. politics in order to get around special interests who controlled state legislatures. In the end, only a referendum can allow the people to break a self-interested legislative chokehold.
In a democracy, the ultimate salvation lies only with the voters. That’s a painful reality. But it’s better to acknowledge it than to fantasize the state supreme courts will save us from ourselves.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.