The U.S. Supreme Court appeared to be struggling Wednesday with how to address voting maps drawn to give the political party in power an extreme advantage over the other, as the justices gathered for the second time this term to hear a case involving partisan gerrymandering.
The case before the justices challenged the boundaries of Maryland’s 6th Congressional District drawn by Democrats. The plaintiffs in the case, Republican voters, argue the lines were drawn to give Democrats an advantage, diluting their votes and violating their free speech rights.
Where some of the justices largely agreed was that the district constituted a partisan gerrymander and was drawn in a manner to ensure a Democratic win.
“However much you think is too much, this case is too much,” Justice Elena Kagan said, referencing statements from former Maryland Gov. Martin O’Malley and Rep. Steny Hoyer, D-Md., that indicated Democrats intended to draw the district to ensure their party would win the seat for Maryland’s 6th.
“How much more evidence of partisan intent could we need?” Kagan added.
A Democrat, she continued, has prevailed in the 2012, 2014, and 2016 elections, the three that have taken place since the new district lines were implemented.
“It appears that the Maryland legislature got exactly what it intended,” Kagan said.
At one point during the hour-long argument, Justice Stephen Breyer suggested the court hear arguments again next term in the partisan gerrymandering cases out of Maryland, Wisconsin, and North Carolina to compare different standards for measuring the political bias injected into the redistricting process.
The Supreme Court heard arguments in the Wisconsin case, a challenge brought by Democrats to the full legislative map drawn by Republicans, in October.
“You could have a blackboard and have everyone’s theory on it, and then you’d have the pros and cons and then you’d be able to look at them all and then you’d be able see perhaps different ones for different variations,” Breyer said.
Breyer acknowledged extreme partisan gerrymandering appears to be “a clear violation of the Constitution in some form,” and raised the need for a “practical remedy” that would address the issue, but protect judges from constantly having to get involved in political decisions.
The case before the justices Wednesday stems from a lawsuit filed by Republican voters living in Maryland’s 6th challenging the district lines.
The congressional seat had been held by Rep. Roscoe Bartlett, R-Md., for nearly 20 years. But in 2011, Democrats decided to re-draw the district boundaries.
According to statements made by Democratic officials during depositions, the goal of changing the lines of Maryland’s 6th was to flip the district from Republican control to Democrat control.
As a result, mapmakers moved more than 360,000 residents out of the conservative Western Maryland district and moved in roughly that many from the liberal Washington suburb of Montgomery County. The effect was a “90,000-voter swing in favor of registered Democrats,” the plaintiffs said in its brief filed with the court.
With the new district lines in place, Bartlett lost his re-election bid in 2012 to Rep. John Delaney, a Democrat who has held the seat since.
In their challenge, the Maryland voters argue their First Amendment rights were violated as elected officials gerrymandered the district to retaliate against them for their support of Republicans.
Their goal, the plaintiffs argue, was to “dilute Republican voter strength enough” to stop Bartlett from winning.
But Maryland officials claim the new lines returned Maryland’s 6th to the configuration it held throughout most of the 20th century and made the district competitive.
The defendants also reject the voters’ claim the redistricting plan was drafted behind closed doors, as they note it was approved at referendum by a majority of Maryland voters.
The Maryland GOP voters asked the justices to consider their case after a three-judge panel denied their request for a preliminary injunction.
The justices largely agree that partisan gerrymandering is, as Justice Samuel Alito said in October, “distasteful,” but they have struggled to agree on a standard for determining when a district redrawing goes too far.
In a 2004 case before the justices, which was the last time the justices considered the issue of partisan gerrymandering, Justice Anthony Kennedy acknowledged the high court could wade into such cases if it agreed to a workable standard for measuring when elected officials have injected so much partisanship in the redistricting process it violates the Constitution.
But it was unclear from arguments in the Wisconsin case, and again Wednesday, whether Kennedy is closer to finding such a standard.
Lawyers for the Maryland voters believe the First Amendment retaliation doctrine “provides a principled and rationale framework” for considering partisan gerrymandering challenges.
With this framework, they contend, the question of whether too much political bias was injected into the redistricting process turns on “how and why” the map was drawn in the matter that it was.
But Kennedy seemed concerned a ruling from the court would “upset settled expectation” ahead of the November midterm elections. Chief Justice John Roberts also suggested Maryland voters waited too long to file their lawsuit.
An opinion from the justices is expected at the end of June.
