"Throw the bums out" is the basic operating principle of American democracy. If your representative isn't representing you, you fire him. But in reality it's not so easy to shitcan a bad congressman—now more than ever. That's a direct result of gerrymandering, which has dogged American democracy since even before Eldridge Gerry drew his salamander and earned the name. Partisan redistricting seems to violate some of the basic principles of democratic government: it allows politicians to draw the areas they represent to include or exclude voters—that is, to pick their constituents, rather than the other way around.

By "packing" Democratic or Republican voters into a few districts, or "cracking" them out over a bunch so they're a hopeless minority in all of them, you can dilute the power of some citizens' votes based on how they vote. With advances in data and computing, politicians can do this more effectively than ever—and, in the process, prevent citizens from holding their representatives accountable.

The Supreme Court has consistently punted on questions of partisan gerrymandering. Racial gerrymandering has been ruled unconstitutional—a violation of the 14th amendment's equal protection clause—but it is still legal to draw districts on political lines to entrench your own political power. In North Carolina, for example, a court struck down a racially gerrymandered map. So Republican lawmakers went back to the drawing board and came up with perhaps the most extreme partisan gerrymander in the country: the map gave Republicans 10 out of 13 seats, even though they won just 51 percent of the vote.

That's what's at stake, along with a map out of Maryland, in a clump of cases before the Supreme Court this week, as the Southern Coalition for Social Justice argued on behalf of the League of Women Voters in Rucho v. League of Women Voters of North Carolina. Allison Riggs is the lead litigator on that side, and I spoke to her on Wednesday—the day after oral arguments—to learn why this case might be different and what they're actually asking from the Court.

Riggs recounted some intriguing lines of questioning from Justices Gorsuch and Kavanaugh. But in the end, it all might come down to the simple fact that Chief Justice John Roberts doesn't want to spend the rest of his career hearing redistricting cases. The interview has been lightly edited and condensed for clarity.

Jack Holmes: What's your core goal with the case?

Our fundamental goal is creating a situation where there are some limits on bad actions, like what North Carolina keeps doing over and over again. We're not trying to take politics out of redistricting, but if there's not some outer boundary of what is deemed acceptable then what we see is North Carolina's 2016 Congressional Plan where voters have no chance. Voters can't self-correct this, they can't, you know, vote out the rascals who keep passing laws.

Allison Riggs argued before the Supreme Court on behalf of the League of Women Voters in Rucho v. League of Women Voters of North Carolina. @AllisonJRiggs/Twitter

The North Carolina legislature has passed probably 25 or more unconstitutional laws this decade that courts have struck. And the conservatives on the Court want democracy to fix this. They don't want the courts to fix it. Gorsuch and Kavanaugh kept trying to pound this drum about, "Well, states can fix this themselves. We don't need to do it." They want to leave this stuff to the voters, but there comes a point and a time in which the courts have to intercede to protect constitutional rights. If you rig electoral districts so that it doesn't matter if voters turn out in record numbers, it doesn't matter if you have a five point democratic swing in North Carolina. You're still going to have the same electoral outcome.

We want some boundaries so that democracy can work the way it's supposed to, which is voters say: “I like these people, I like these policies. I don't like these people, I don't like these policies, and I'm going to vote 'em out.” What you see in North Carolina is Republicans take 78 percent of the seats, no matter what. Democrats win 54 percent of the votes statewide, Republicans get 78 percent of the seats.

So you don't necessarily want to change the playing field, you just want the Court to draw an out-of-bounds line?

Personally, would I change the playing field? Radically? Sure. But I know I can't ask this Court to do that, so that's why yesterday we were talking about, identify the extreme outliers and police those and those only. That doesn't mean that then you're asked to get involved in every redistricting case. It sends a deterrent message that this isn't just a free-for-all and if you overstep, you will be called out on it. In reality, it's not going to affect many redistricting plans. But I think the deterrent effect would be really significant.

How would you change it radically?

I'm a fan of citizen redistricting commissions. I'm not actually a fan of appointed commissions, which tend to be just as political as the legislature but less accountable. But I like citizen engagement and participation in the process, and I think part of how we've devolved over the last decade or two is that this has become more technical and less accessible to John Q. Public. And so, there's less understanding and awareness by voters. So my organization is about to start a huge run of redistricting-schools to try and get folks more educated on the process, so they know how to engage.

What about proportional representation? [Editor's note: This refers to elections in which a political party is awarded seats based on the share of the vote they received. It's not winner-take-all, as is the case in American elections.]

Those questions, particularly in oral argument yesterday, were red herrings. To move towards a system of proportional representation, like they have mostly in the U.K., would be just a complete paradigm shift. If this country can't handle the idea of single-payer healthcare, no one could handle that. Most of the questions yesterday were tricks to try and make it seem like the litigants, the people who wanted to strike down the unfair maps, really just wanted proportional representation and, you know, that's anathema to our history. It's not consistent with how our constitution and our federal laws are written, blah blah blah.

The Supreme Court could create an out-of-bound lines for partisan redistricting cases. Getty Images

So the Justices were asking you questions trying to paint you into that corner?

Yeah, they wanted to equate what we were trying to test or measure for as really just a proxy for proportional representation. Justice Kavanaugh had a few questions about proportional representation, and I think some people thought he thinks that wouldn't be the end of the world. But I tend to think that's not where that was coming from.

It's interesting the justices use some of the same tactics politicians do—painting the other side as the most extreme possible variant of their position.

For a Court that doesn't want to be perceived as political, yeah.

"If this country can't handle the idea of single-payer healthcare, no one could handle that."

Is there research showing gerrymandering fuels dysfunction or polarization, since lawmakers from deep-red or deep-blue districts have less incentive to compromise with the other side?

I'm not sure I can point to any quantitative study, but I think it has two harms. It creates an atmosphere of heightened political polarization. There's definitely academic studies about politics being more polarized now than they've ever been. I don't know that they causally link that to gerrymandering, but it's absolutely true.

The other effect that I certainly see is that when you're a voter in one of these districts, there's a whole lot of apathy. It doesn't really, really matter what I do. It doesn't really, really matter how I vote. There have been studies about how that affects apathy and turnout.

Voters in North Carolina, where the courts struck down a racially gerrymandered map. Republican lawmakers went back to the drawing board and came up with perhaps the most extreme partisan gerrymander in the country: the map gave Republicans 10 out of 13 seats, even though they won just 51 percent of the vote. LOGAN CYRUS Getty Images

What are some of the more granular legal considerations the case might hinge on?

Well Paul Clement argued for North Carolina and he wanted to say the cases are non-justiciable, which is to say the Court doesn't have any authority to make rules on purely political decisions. And so they have to say, “We're hands off.” They will very, very rarely say this about [for instance] the military. "The courts shouldn't be making military decisions, or second guessing executive decisions on, you know, who gets bombed when, or when the Ohio National Guard gets called out, etc." This is not one of those cases. The Court's been hearing and adjudicating redistricting cases since the 1960s. Actually before that.

But the folks who just really hate having to do the redistricting cases, and may in good faith believe this is going to open the floodgates to more lawsuits, it might not be far-fetched. It upsets [precedent], but it would be one way this case could end. Paul Clement played almost all of his cards on that play. Aat the end of the day, you know, this is a court that is obviously led by the Chief [John Roberts] who doesn't want to have all of these redistricting cases all the time.

The Court was involved in what were called the "one-person, one-vote" cases, where districts were unevenly populated. In Baker v. Carr they thought—Justice Ginsberg brought this up yesterday—that the dissent's predictions were, "If we wade into this political thicket," which was unevenly populated districts, "We'll never get out. We'll get lost forever and our entire docket will get swallowed by these redistricting cases."

The slippery slope argument.

And that didn't happen. The same thing with the race cases, right? The Court said, "We don't want government in the business of sorting people by race into districts" in order to comply with the Voting Rights Act. But just because politics are involved in redistricting, doesn't mean that the Court's relieved of its duty to ensure that constitutional rights are violated. They may not like doing it, it may be an unwelcome obligation, but they have to do it.

We're asking them to do is when the invidious partisan motivation reaches the point to which, it's like a party trying to entrench itself to be totally immune to the voters. That's when the voters start to feel a constitutional injury. They're being punished for their political positions and preferences, and their fundamental right to vote has become meaningless. And that's where the courts have to step in.

Just come up with something that will not necessarily solve the problem, except for maybe in a few cases, but it would be their way of saying, “We're not going to completely green light this kind of behavior.” The court doing nothing here is green lighting what happened in North Carolina in 2016. If saying something is a partisan gerrymander immunizes a legislature, you're gonna see all kinds of nefarious tactics cloaked with that defense. It really is going to be a free-for-all.

Jack Holmes Politics Editor Jack Holmes is the Politics Editor at Esquire, where he writes daily and edits the Politics Blog with Charles P Pierce.

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