A divided Supreme Court Tuesday sought to tackle partisan gerrymandering, grappling with identifying a standard for determining when an excessive injection of politics in redistricting crosses a constitutional line.
The justices heard arguments in two cases involving congressional districts in North Carolina and Maryland. The maps had been struck down by lower courts as unconstitutional partisan gerrymanders.
The arguments marked the second time in two years the justices sought to find a solution to partisan gerrymandering claims, including whether such challenges can be heard by the courts.
Several of the justices seemed to object to the extremeness of the maps before them.
Under North Carolina’s voting lines, Republican candidates won 53 percent of the statewide vote in 2016, but the GOP won 10 of the state’s 13 congressional districts. And in the Maryland case, which involves Maryland’s 6th Congressional District, the seat had been held by Republican Rep. Roscoe Bartlett for more than 20 years until 2012, the first election held after redistricting, when a Democrat won.
In both cases, Republican mapmakers in North Carolina and Democrat mapmakers in Maryland explicitly expressed a desire to minimize the number of seats held by their political opponents.
The lawmakers involved were “completely up front” about their partisan intent when drawing congressional districts, Justice Elena Kagan said. “You don’t find silver bullets like that very often,” she said.
In the North Carolina case, Kagan noted that of the 24,000 possible congressional maps drawn through computer simulations, 23,999 “produce an outcome that’s less partisan” than the map ultimately selected by the state legislature.
“99 percent of the time you get a map that is more fair to both parties than the one that is chosen,” Justice Sonia Sotomayor told Paul Clement, who argued the case on behalf of North Carolina’s GOP lawmakers.
“You’re discriminating on the basis of a group’s speech and diluting their vote accordingly,” she added.
But at least one justice, Justice Neil Gorsuch, signaled he is hesitant to say courts can hear partisan gerrymandering claims. Gorsuch noted multiple times throughout arguments in both cases that numerous states have passed ballot initiatives creating independent redistricting commissions.
“My sense is there’s a lot of movement in this area,” Gorsuch said.
Twenty states, he said, have addressed redistricting through citizen-led initiatives, including five who passed ballot initiatives on redistricting in November.
“Why should we wade into this when that alternative exists?” Gorsuch asked.
Justice Brett Kavanaugh also highlighted the state efforts but said he would not dispute that “extreme partisan gerrymandering is a real problem for our democracy.”
“There is a fair amount of activity going on in the states on redistricting and attention in Congress and in state supreme courts,” Kavanaugh said. “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’s vote is being closely watched in the case, as he replaced Justice Anthony Kennedy on the high court in October. Kennedy suggested in a 2004 partisan gerrymandering case that a voting map may be so infected with politics it is unconstitutional.
As a former judge on the federal appeals court in the District of Columbia, Kavanaugh has never confronted partisanship in the redistricting process, leaving his views on the issue a mystery.
At the center of the challenges is the question of whether drawing maps to entrench the party in power runs afoul of the Constitution.
The case out of Maryland was brought by GOP voters who argue the state’s Democrats retaliated against them for their support of Republicans, in violation of the First Amendment.
The Supreme Court heard the Maryland case last term but sent it back to the lower court. Then, in November, a three-judge panel ruled the map was unconstitutional and ordered the state to redraw the district.
The North Carolina case, meanwhile, involves the state’s full congressional map, which was struck down by a three-judge panel as unconstitutional. The lower court ruled the GOP-controlled state legislature drew the voting lines to undercut Democrats’ chances of getting elected.
The three-judge panel specifically noted comments from state Rep. David Lewis, a Republican, who explicitly stated in 2016 the districts were drawn with politics in mind.
“I think electing Republicans is better than electing Democrats,” Lewis said. “So I drew this map to help foster what I think is better for the country.”
A decision from the justices in the Maryland and North Carolina cases is expected by the end of June.
