The U.S. Supreme Court offered no hints Wednesday as to how it might handle legal challenges to partisan gerrymandering, after previously hinting they may allow courts to police overtly political map-making in the decennial redrawing of congressional districts.
The Court seems eager to say something about political gerrymanders — a common phenomenon in which the ruling party draws legislative maps to its advantage. Earlier in the term, the justices heard a challenge to Wisconsin’s state legislature map. A third challenge from North Carolina is pending. But the Court struggled to identify an easy, manageable standard for deciding such cases, and they came no closer Wednesday.
At one point, Justice Stephen Breyer suggested the Court should set the three gerrymandering cases before them for reargument in 2019.
“What would you think of taking the three cases and setting them for reargument?” Breyer asked Michael Kimberly, attorney for the Maryland plaintiffs.
“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,” he added.
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Wednesday’s case was occasioned after the 2010 census, when Maryland’s map-drawing commission redrew the district boundaries of the state’s 6th congressional district to ensure longtime Republican incumbent Rep. Roscoe Bartlett would lose in the 2012 elections.
The new lines incorporated a portion of the Washington, D.C., suburbs, adding tens of thousands of Democratic voters to the west Maryland district. As expected, Bartlett lost to Democratic upstart John Delaney in 2012. He withdrew to a remote West Virginia compound after leaving Congress, and Delaney has announced plans to run for president in 2020.
The state’s intentional gerrymander is unconstitutional, the map-challengers argue. They claim Maryland Democrats are retaliating against them for their historical support of Bartlett by making it impossible for a Republican to prevail in their district, in violation of the First Amendment.
This theory is different than arguments raised in the Wisconsin and North Carolina cases currently pending before the justices. Those map-challengers argue courts should intervene in redistricting disputes if plaintiffs can show political considerations excessively drove the map-making process. While they concede politics can drive line-drawing to a limited extent, they propose several statistical measures to determine when political concerns dominated the task.
Justice Elena Kagan suggested the Court need not answer the perennial “how much is too much” question, since the facts of this case make indisputably clear the state’s purpose was to rig the 6th district to the advantage of Democrats. Former Maryland Gov. Martin O’Malley, a Democrat, candidly admitted his goal was to marginalize Republicans in a deposition at an early stage of the litigation.
“We don’t have to say something like that to deal with this case because, however much you think is too much, this case is too much,” Kagan said to laughter in the courtroom.
But Justice Samuel Alito feared the First Amendment theory would permanently inhibit efficient and effective redistricting.
“I really don’t see how any legislature will ever be able to redistrict,” he said of their proposal.
Several justices seemed skeptical they could — or should — provide relief before the November elections. The Court generally takes several months to resolve cases, at which point both candidates and state officials would have little time to prepare for an election in a brand new district.
Kennedy feared a compressed timeline would disrupt the electoral process, while Chief Justice John Roberts and Justice Sonia Sotomayor pointed out the plaintiffs waited three full electoral cycles before bringing a lawsuit, suggesting time is not a pressing matter.
All told, however open they may be to the claims of Maryland Republicans, the justices were not sure judicial action was appropriate at this phase or that the plaintiffs have come up with the right theory to handle partisan gerrymandering claims.
A decision in the case, Benisek v. Lamone, is expected by June.
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