The fight over partisan gerrymandering will be before the Supreme Court again next week with a case that could potentially affect future elections at the state and federal levels.
The justices will gather Wednesday to hear oral arguments in a challenge to the boundaries drawn by Maryland Democrats in 2011 for the state’s 6th Congressional District, which the plaintiffs in the case argued was a partisan gerrymander that violated their First Amendment rights.
The approaching argument marks the second time this term the Supreme Court will hear a case that deals with partisan gerrymandering, the practice of redrawing district boundaries in a manner that benefits one political party over another.
In October, the justices considered a challenge to the legislative map drawn by Wisconsin Republican state lawmakers in 2011.
Last year’s oral argument was the first time since 2004 the high court had mulled a partisan gerrymandering case. But the Supreme Court announced in December it would take up the Maryland case that raises the question of whether a voting map provided one political party with such an advantage that it infringed upon the constitutional rights of voters.
The case stems from a lawsuit Maryland Republican voters filed challenging the lines of Maryland’s 6th.
Rep. Roscoe Bartlett, R-Md., had represented the district for nearly 20 years, but statements made during depositions indicate Democratic officials targeted Bartlett’s district with the goal of flipping it.
“It was my intent … to create a district where the people would be more likely to elect a Democrat than a Republican,” then-Gov. Martin O’Malley, a Democrat, said during a deposition.
Mapmakers moved more than 360,000 residents out of the conservative Western Maryland district and moved roughly that many into it from the liberal Washington suburb of Montgomery County, which resulted in a “90,000-voter swing in favor of registered Democrats — a complete upheaval for a district in which typically 230,000 voters cast ballots in mid-term elections,” the plaintiffs argue in a brief filed with the court.
After the district boundaries were redrawn, Bartlett lost his seat to Rep. John Delaney, a Democrat, in 2012. Delaney has held the seat since then, but is not running for re-election.
Republican voters living in Maryland’s 6th said in court that election officials gerrymandered the district to retaliate against them for their support of Republicans. That partisan gerrymander, they argue, violated the First Amendment.
“The gerrymander prevented them from re-electing Congressman Bartlett, disrupted and depressed Republican political engagement in the area, and manifestly diminished their opportunity for political success,” lawyer for the voters wrote in their brief.
The court will consider Wednesday whether the voters’ First Amendment retaliation challenge should proceed, as well as whether a three-judge district court, which denied a request from the plaintiffs to block the map from being used, erred when it said the plaintiffs didn’t show they were likely to succeed on the merits of the case.
The plaintiffs, Republican voters, say the First Amendment asks if the state “has imposed a real and practical burden” … “in retaliation for past political support for the opposition party.”
Court watchers are expecting the arguments to provide a window into the justices’ thinking on how the court should resolve partisan gerrymandering disputes, as the Supreme Court decided to hear the case two months after considering the Wisconsin challenge.
“The court has been thinking about these issues internally since October,” said Derek Muller, an associate professor of law at Pepperdine University School of Law. “Sometimes they might show up and haven’t discussed these issues, but theoretically, they’ve been swapping opinions for a while. We might see some hints about drafts they have circulated, and I think everyone is going to be looking at Justice [Anthony] Kennedy in particular.”
When the justices last heard a partisan gerrymandering case in 2004, the court split. But Kennedy, often the swing vote, said the court should agree to a workable standard to address partisan gerrymandering.
It’s not clear from oral arguments in the Wisconsin case, Gill v. Whitford, if Kennedy is closer to finding that standard, and some legal experts doubt altogether the judiciary should even be considering partisan gerrymandering cases.
But Muller said he believes it’s unlikely the Supreme Court will decide not to get involved in partisan gerrymandering cases at all, as Kennedy signaled during October’s arguments the cases should be brought on First Amendment claims, as Maryland’s was.
The plaintiffs in the Wisconsin case used an equal protection challenge.
“Justice Kennedy has seemed to really embrace the idea that the First Amendment is the best place for the claims to be heard,” Muller said. “All the questions during Gill were about the First Amendment, and the Maryland case was litigated as a First Amendment case. It provides the doctrinal setup for the court in the event Justice Kennedy wants to set [partisan gerrymandering] up as a First Amendment issue.”
Muller said he’s “deeply skeptical” the court will agree to a standard that sufficiently addresses the concerns raised about identifying partisan gerrymandering, but in the event the justices do, he said it presents two risks.
“One is it comes up with a standard too flimsy, that’s too easy for the state legislators to evade. And then we’re back to the same position where people say we don’t have something strong enough,” he said. “The prevailing concern is going to be coming up with something that isn’t going to invite too much judicial review.”
“… There’s no question that coming up with a standard, striking down these maps, would invite a flood of new litigation,” Muller continued.
If the Supreme Court devises a workable standard for addressing partisan gerrymandering and deems either of the maps in the Wisconsin or Maryland cases unconstitutional, Ruth Greenwood, senior legal counsel at the Campaign Legal Center, said it could have a significant impact on future elections.
“Hopefully the [redistricting] plans that get passed are actually fair,” she said during an event highlighting a tool that can identity partisan gerrymanders Friday. “Hopefully it encourages people to be better actors and create plans that are actually fair, and by fair, I mean fair to the voters.”
