WASHINGTON – The drawing of election districts to benefit one political party over another divided Supreme Court justices Tuesday largely along ideological lines, with Chief Justice John Roberts and Associate Justice Brett Kavanaugh holding the key votes.
Faced with challenges to congressional maps drawn by North Carolina Republicans and Maryland Democrats to maximize their chances of victory, the court’s liberal justices decried them, while conservative justices defended state lawmakers’ right to design them.
Giving opponents of partisan gerrymandering a glimmer of hope that the court might finally strike down the unsavory practice were the open-minded views expressed by Roberts and Kavanaugh.
While noting that a map drawn by state legislators without any partisanship “would be the first time in history,” Roberts acknowledged that technological advances have led to “a change in how redistricting has been done.”
“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?” Kavanaugh asked, referring to Congress, voter initiatives and state courts.
The major hurdle standing in the way of a decision striking down one or both maps appeared to be a standard for how much partisanship is too much. In the end, that may be sufficient to beat back both challenges, as it has been in the past.
“We need to have a number or some formula,” Associate Justice Neil Gorsuch said. “Otherwise, every case is going to come to this court.”
The high court has never declared an election map drawn for blatant partisan advantage unconstitutional. The justices have reasoned that elected officials are expected to joust for power in that fashion, while courts should be reluctant to intercede.
But challengers were betting that this year, with these maps, the court might see things differently. In a relatively “purple” state where the 2016 gubernatorial election was decided by 10,000 votes out of 4.6 million cast, the North Carolina map was drawn to give Republicans a 10-3 advantage in Congress. In more liberal Maryland, the map gave Democrats a disproportionate 7-1 majority.
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What’s at stake more broadly is the way state and congressional election districts are redrawn once every decade in most states – a system dominated by political self-interest that grows more intense every time the Supreme Court declines to tame it.
If the justices decide the congressional maps in North Carolina or Maryland violate the Constitution by relegating some voters into irrelevance, it could signal a sea change in the way legislatures controlled by one party have tried to rig the map-making process.
If, on the other hand, they do not rein in the practice, election districts drawn after the 2020 census could be even more extreme, leading to more lopsided elections and more ideological gridlock in Congress.
The court has declined to intervene five times before, most recently last year, when the justices refused to decide challenges in Wisconsin and Maryland.
Since then, Kavanaugh has succeeded the retired Anthony Kennedy, who represented the swing vote on the issue. While other conservative justices were willing to shut the door to such challenges in the past, Kennedy held out hope for a standard defining how much politics is too much.
For the past decade, Democrats have been victimized by gerrymandering the most. Republicans seized power in many states in the 2010 midterm elections, giving them control over the redistricting process. Democrats are at a disadvantage entering the 2020 elections, which will determine who draws the next decade’s state and congressional lines in most states.
The legal fight against partisan gerrymandering continues even as voters in several states demand commissions already used in eight states, including California, to draw maps designed to treat both parties fairly. Ballot measures in Colorado, Michigan and Utah were approved last fall, while Missouri and Ohio voters won passage of other changes.
Gorsuch, Kavanaugh and Associate Justice Samuel Alito all noted that voters are taking opposition to gerrymandering into their own hands, inferring that perhaps the high court should stand aside and let that happen.
But Associate Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor argued that when legislatures place voters into districts where their votes won’t make a difference, they are stripping them of their rights.
“You’re discriminating on the basis of a group’s speech and diluting their vote accordingly,” Sotomayor said.
Associate Justice Stephen Breyer, often in search of a compromise that will cross ideological lines, suggested “a way to catch real outliers” by ruling, for instance, that a legislature cannot give the state’s minority party two-thirds of the seats up for grabs.
“That would be pretty extreme,” Breyer said. “And the virtue of it – it’s absolutely simple.”
Whatever the court decides could affect several other states with lawsuits pending, including Michigan, Ohio and Wisconsin. The justices last year let stand the Pennsylvania Supreme Court’s decision striking down that state’s congressional map and replacing it with one that helped Democrats win more seats in November.
North Carolina’s congressional map represents the freshest test. The facts aren’t even in dispute: Lawmakers in the state, where the statewide congressional vote swings back and forth between Democrats and Republicans, openly declared their intention to draw a 10-3 congressional map.
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To achieve their goal, the map packed Democrats into three districts and spread them among the other 10. In one glaring example, it split North Carolina A&T State University, the nation’s largest historically black college, between the 6th and 13th congressional districts.
Challengers have noted that some 24,000 alternative maps generated by computer revealed that Republican legislators’ choice was more partisan than 99 percent of them.
Paul Clement, the lawyer representing those lawmakers, said the array of alternatives shows that the process is discretionary, and therefore best left to the politicians rather than the courts.
“Well, that’s making lemonade out of lemons,” Associate Justice Elena Kagan quipped.
The Maryland map that returned to the high court was drawn by the legislature’s Democratic majority to oust a longtime Republican congressman and give Democrats a seventh congressional seat.
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That rural 6th district is home to 40 miles of the Appalachian Trail, but it was stretched to include wealthy suburbs of Washington, D.C. Heading into the 2010 elections, it had nearly 50,000 more registered Republicans than Democrats. Two years later, the reverse was true.
Roberts and Kavanaugh, who both live in Maryland near the challenged district, readily agreed the 7-1 ratio was disproportionate to the political breakdown of the state.
“It does seem that this is a situation where the state is taking retaliatory action against Republicans who were in that district and had a more effective vote, and penalizing them for exercising their right to vote by moving them out to a different district,” Roberts said.
Still, the chief justice appeared concerned about a court-imposed solution based on a “rough mathematical threshold.”