Supreme Court Holds Hearings On Congressional Gerrymandering Case

The Supreme Court returned to the subject of partisan gerrymandering on March 26, appearing divided along ideological lines as it considered for a second time in two years whether drawing election maps to help the party in power ever violates the Constitution. Justice Brett Kavanaugh, the court’s newest member and the one who may possess the decisive vote, expressed uneasiness about the practice. “Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.” He added, though, that recent developments around the nation, including state ballot initiatives establishing independent redistricting commissions, proposed legislation in Congress and State Supreme Court rulings, may take action from the US Supreme Court less necessary. “Have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?” he asked.

Justice Brett Kavanaugh was an exceptionally active participant in March 26’s arguments, asking probing questions of both sides and displaying particularly detailed familiarity with the geography and voting districts of Maryland, his home state. But his record as an appeals court judge provides few hints about how he will approach the issue. The other justices seemed largely split along the usual lines, with the more conservative ones wary of announcing constitutional limits on partisan gerrymandering and the more liberal ones prepared to try. There was certainly no consensus on how to fashion a legal standard that would separate acceptable partisanship from the kind that is unconstitutional. Justice Stephen Breyer proposed a numerical test, but it did not seem to gain traction with his colleagues. Justice Neil Gorsuch, on hearing one lawyer’s proposed standard, said it amounted to “I know it when I see it.”

Last year’s cases, from Wisconsin and Maryland, raised the possibility that the court might decide, for the first time, that some election maps were so warped by politics that they crossed a constitutional line. Challengers had pinned their hopes on Justice Anthony Kennedy, who had expressed ambivalence on the subject, but he and his colleagues appeared unable to identify a workable constitutional test. The justices instead sidestepped the central questions in the two cases. When Justice Kavanaugh replaced Justice Kennedy, many election lawyers said the prospects of a decision limiting partisan gerrymandering dropped sharply. Justice Kavanaugh’s questioning on March 26 complicated that assessment.

The North Carolina case, Rucho v. Common Cause, No. 18-422, was an appeal from a decision in August by a three-judge panel of a Federal District Court in North Carolina. The ruling found that Republican legislators there had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates. The Maryland case, Lamone v. Benisek, No. 18-726, was brought by Republican voters who said Democratic state lawmakers had in 2011 redrawn a district to retaliate against citizens who supported its longtime incumbent, Congressman Roscoe Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.

Overall, the striking down of the tactic of partisan gerrymandering by the Supreme Court would have significant results going forward and would help to equalize the American political system. For example, gerrymandering is the primary factor that prevented the Democrats from regaining control of Congressional seats in competitive states and reduced their chances to have a substantial House majority. Additionally, gerrymandering has prevented the Republican Party from remaining competitive in states that lean towards the Democratic Party. If gerrymandering is overturned, it is hoped that the American political system will stabilize and the hyper-partisan rhetoric on both sides of the aisle will subside.