AN INVISIBLE LINE in Greensboro divides the campus of North Carolina A&T State, America’s largest historically black university. On one side of Laurel Street lies the state’s sixth congressional district; on the other is the 13th. For Love Caesar, who is studying political science and history, the school’s 12,000 mostly “liberal thinking” students are “cracked” in two, diluting their votes into a sea of Republicans on either side. Republican legislators in North Carolina are happy to admit that Ms Caesar is quite right. In 2016 David Lewis, an architect of the plan, said the electoral map was designed “to gain partisan advantage”. The statewide vote has been nearly tied in recent elections, but the Republican Party’s cartographic acumen—splitting some Democratic constituencies and stuffing others into as few districts as possible—helped to win the party ten of the state’s 13 congressional seats (see map). Mr Lewis lamented only that it wasn’t “possible to draw a map with 11 Republicans and two Democrats”.
On March 26th, the Supreme Court scrutinised North Carolina’s map and another brazen gerrymander that turned a reliably Republican district in Maryland Democratic, boosting Democrats’ share of the state’s eight congressional seats from six to seven. No justices spoke up in favour of politicians warping district lines to entrench their own power. Justice Brett Kavanaugh, for one, said the practice is “a real problem for our democracy”. But it was uncertain, after more than two hours of oral arguments, whether a majority of the justices will decide that even ghastly gerrymanders violate America’s constitution.
In 2018 the court also heard a pair of partisan redistricting cases—an earlier iteration of the same matter from Maryland, and a challenge from Wisconsin. Reformers had hoped Justice Anthony Kennedy might join the court’s liberal bloc to rein in gerrymandering, but both cases ended in a procedural fizzle. This time round, neither Rucho v Common Cause, the North Carolina case, nor Lamone v Benisek, out of Maryland, included more than a whisper about eligibility to sue, the matter on which the Wisconsin case foundered last June. Instead, the justices dwelt on the question of “justiciability”—whether gerrymandering is even something courts can tackle.
The lawyer representing North Carolina’s legislators, Paul Clement, began by noting that the Supreme Court has never pinpointed “a justiciable standard for partisan gerrymandering claims”. That is true. In a case from 2004, Justice Kennedy held open the possibility that a workable standard might one day emerge to distinguish extreme from acceptable levels of partisanship in map-making. That the court has never arrived at one, Mr Clement said, is not for lack of judicial imagination, but because the framers entrusted districting to state legislatures, with Congress playing a supervisory role. All three authors of the “Federalist Papers” were concerned about gerrymandering, he said, but neither Alexander Hamilton, James Madison nor John Jay prescribed “a judicial solution”.
Justice Stephen Breyer pressed Mr Clement to consider “a way to catch real outliers”. What if a party “wins a majority of the votes in a state”, he mused, “but the other party gets more than two-thirds of the seats?” Is that result extreme enough to warrant judicial intervention? Perhaps, Mr Clement replied, if the constitution had a “one-standard-deviation-from-proportional-representation clause” But it does not. There are no moorings for a judicial foray into the waters of partisan gerrymandering. Luckily, Mr Clement said, citing a suggestion from retired Justice Sandra Day O’Connor, the problem is “largely self-healing”, as voters will push for reforms and punish excessive gerrymanders by voting out governors who approve them.
Justice Neil Gorsuch picked up on this in response to the claim that the Supreme Court “must act because nobody else can”. About 20 states, he noted, have “dealt with this problem through citizen initiatives” handing over map-drawing to bipartisan or independent commissions, and a “bunch more” will be on the ballot in 2020. Justice Kavanaugh agreed that “a fair amount of activity” in the states may free the Supreme Court from the “big lift” of policing partisan gerrymandering.
But in the hearing on Maryland’s gerrymander, Justice Kavanaugh, who grew up in the state and lives in Chevy Chase, a suburb of Washington, DC, seemed to envision a role for the courts in checking legislators who “penalise [voters] because of their political affiliation”. Teaming up with Justice Elena Kagan, who said a ruling against extreme partisanship could weed out “the worst of the worst” gerrymanders by putting legislators on notice, Justice Kavanaugh appeared to think a line might be drawn. Whereas a mild partisan effect from an electoral map would not trigger judicial reprimand, he said, “something that’s really extreme…would not be okay.”
Some justices fret that gerrymandering will only get worse with, as Justice Breyer put it, “computers in the future” drawing districts with increasing precision. But none of the nine seems hungry for an avalanche of challenges after electoral maps are redrawn with 2020 census data. The court’s decision will probably turn on its response to a warning from Mr Clement. “Once you get into the political thicket”, he cautioned, “you will not get out.”