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Advocates: The time is now for SCOTUS to set partisan gerrymandering standard

In less than two weeks, attorneys will be back in front of the U.S. Supreme Court to argue a North Carolina partisan gerrymandering case — but this time, they hope, things will be different.

“The North Carolina case is the best test case to right the wrongs in North Carolina and frankly to set a standard throughout the country,” said Kathay Feng, national redistricting director at Common Cause. “Paired with the Maryland case, which is an example of Democratic gerrymandering, we believe that this is the moment for SCOTUS to clearly articulate a partisan gerrymandering that is unconstitutional.”

Oral arguments in sibling cases Common Cause v. Rucho and League of Women Voters v. Rucho will be heard March 26. A federal court has already found twice in the partisan gerrymandering cases that the state’s 2016 congressional redistricting plan was unconstitutional.

Feng gave an overview of the cases Wednesday in a teleconference. She said the undisputed facts of the case make it different from others heard by the high court in the past — mainly that GOP legislative leaders said on the record they drew districts to maximize partisan gain.

Daniel Tokaji, an election law and First Amendment professor from Moritz College of Law, agreed and said the strongest legal basis of the Common Cause case was the violation of First Amendment associational rights. The state Democratic Party is a party in the case.

Tokaji said there is 50 years of Supreme Court precedent protecting associational rights and that in some cases, voting is an associational right.

“It’s not only the affect on who gets elected to office that courts should consider … but also effects on the disfavored political party and its supporters outside the electoral process,” he said.

That includes difficulties fundraising, registering voters, generating support, recruiting candidates and accomplishing policy objectives. North Carolina has undisputed evidence of all of it.

Tokaji said the North Carolina best captures the type of injury inflicted by gerrymandering, a systemic injury to a group of people. It also provides the court an opportunity to set a nuanced standard — just because there is intent for partisan gerrymandering doesn’t mean a map is unconstitutional; the court can allow states to present reasons for gerrymandering, like keeping districts compact or geographical considerations.

“To me the biggest reason for being hopeful here — we don’t know for sure what the court is going to do — is that the evidence about how bad the problem has gotten and how toxic it is for our politics as a whole becomes clearer and clearer over time and this isn’t a problem that’s going to fix itself,” he said.

Love Caesar, 20, a student at North Carolina A&T University and a democracy fellow with Common Cause NC, described the effects of partisan gerrymandering on her campus and said it’s very disheartening for students.

“There’s no other college in this country divided into two congressional districts, especially right down the middle,” she said. “It’s so blatantly clear how it’s done. The United States has a history of taking the Black vote and suppressing it, so it’s clear how this gerrymandering dilutes the people’s power at A&T.”

She added that she thinks it’s important for the Supreme Court to set a precedent now because “it’s setting an example to us who are future leaders of this country … about how they want us to act in the future.”

“Will they act with integrity and strike down unconstitutional gerrymandering?” she asked. “I would really, really love to vote on a constitutional map.”

The high court will also hear a Maryland case involving Democratic partisan gerrymandering.

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