The First Amendment Clinic filed an amicus brief with the U.S. Supreme Court in March in a high-profile election law case.
The case, Rucho v. Common Cause, involves a challenge to North Carolina’s 2016 congressional map on the grounds that it too heavily favored Republicans, whose majority in the state legislature gave them control over drawing district lines. Republicans won 10 of the state’s 13 congressional seats that year despite garnering only a slight majority of the overall vote.
In its brief, the clinic argues that “severe partisan gerrymandering,” in which electoral districts are drawn to give the party in power an overwhelming edge over its opponents, violates the First Amendment’s protection of political speech and association through political parties. By effectively disenfranchising the party that is not in power, the practice amounts to discrimination based on political belief, the brief states, requiring the Court to apply strict scrutiny in cases challenging it.
Lucy Xu ’19 and Austin Brumbaugh ’20 worked on the brief under the supervision of Professor H. Jefferson Powell, who directs the clinic, and Lecturing Fellow Nicole Ligon ’16, the clinic’s supervising attorney.
“Severe partisan gerrymandering hollows out these fundamental freedoms by placing disfavored political parties at an enduring electoral disadvantage,” the clinic wrote. “As a result, the speech and associational rights of persons affiliated with those parties are deprived of the very political force that justifies their position in the hierarchy of First Amendment values. Severe partisan gerrymandering, therefore, is like any other legislation that abridges core First Amendment freedoms on the basis of political viewpoint: it disadvantages those it targets because of their expressed political beliefs.”
The clinic’s brief cites North Carolina’s long history with partisan gerrymandering as evidence of its detrimental effect on political liberty. After Reconstruction, the Democratic Party redrew districts to diminish the power of Republican and African American voters (one of many ways in which it sought to restrict the latter’s voting rights) and it used the tactic to maintain a stranglehold on power in the state for nearly a century after that.
“This history demonstrates the devastating effect that gerrymandering has had on democratic governance in North Carolina,” said Brumbaugh. “It also shows that the political process has been insufficient to resolve the problem: gerrymandering has been a regular practice in North Carolina for over a century, first by Democrats and now by Republicans, and recent technology is making it considerably more effective.”
Xu said the historical analysis involved in crafting the brief distinguished it from the many other types of legal writing she has done in the past, but that the context was important in making the clinic’s point to the Court.
“Severe gerrymandering's ability to determine party control enormously burdens the heart of what the First Amendment jurisprudence protects — voters' ability to effectively organize and vote their favored political platforms and candidates,” she said. “Republicans’ recent use of partisan gerrymandering, aided further by advanced district line-drawing technology, is a continuation of this historical practice of severe gerrymandering. Now that the science of creating electoral victories is more exact than ever, severe gerrymandering and its facilitation of one-party entrenchment of power could be here to stay.”
Justices heard oral arguments in Rucho v. Common Cause on March 26, and an opinion is expected before the end of the Court’s term this summer.