A Partisan Gerrymandering Challenge Is Poised To Return To The Supreme Court

REUTERS/Joshua Roberts

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Kevin Daley Supreme Court correspondent
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  • A challenge to North Carolina’s congressional district maps could force the Supreme Court to confront the constitutionality of partisan gerrymandering. 
  • The justices side-stepped that question in a pair of decisions in June. 
  • The North Carolina case seeks to address a problem identified in one of the June decisions, setting up a difficult choice for the short-handed Court.

When the U.S. Supreme Court heard a challenge to the practice of partisan gerrymandering in November 2017, Chief Justice John Roberts expressed concern that the high court’s docket would be inundated with similar cases.

“If this claim is allowed to proceed, there will naturally be a lot of these claims raised around the country,” the chief said. “Politics is a very important driving force and those claims will be raised. And every one of them will come here for a decision on the merits.”

The high court — led by Roberts — effectively dodged the issue in that case, which asked the justices to find partisan mapmaking unconstitutional. But a new case from North Carolina is slated to arrive at the Supreme Court and could force the justices to confront the issue.

A three-judge panel found Monday that the North Carolina legislature had intentionally drawn the state’s congressional districts to the benefit of Republicans, in violation of the Constitution. The decision is the latest in a series of long-running controversies about the GOP legislature’s line-drawing practices.

Republicans enjoy an 11-2 advantage in the state’s congressional delegation, though Democrats generally run evenly with the GOP in statewide races. (RELATED: Democrats Move To Delay Kavanaugh Hearings Because Of The Cohen Plea)

The ruling, written by Judge James Wynn of the 4th U.S. Circuit Court of Appeals, stopped short of ordering the state to produce new maps for the November elections. A decision on that question will follow in the coming days.

North Carolina can appeal the ruling directly to the Supreme Court and will likely do so in the near future. Though the justices generally get to pick which cases they hear, federal law requires the Supreme Court to hear reapportionment cases. The state’s petition will again force an issue the Court successfully avoided last term — the constitutionality of politically-driven mapmaking.

The justices turned back a pair of landmark gerrymandering challenges in June, one from Wisconsin and the other from Maryland. Both were dismissed for procedural reasons.

The North Carolina case attempts to overcome the procedural hurdle the Court identified in the Wisconsin decision. In his decision for the Court, Roberts explained the plaintiffs in the Wisconsin case did not have standing to bring a lawsuit because they were challenging the entire statewide map. Under the plaintiffs’ theory, Roberts said, cases are best brought on a district-by-district basis.

This time, the North Carolina plaintiffs are drawn from all 13 congressional districts within the state. (RELATED: Supremes Duck Major Ruling On Partisan Gerrymandering)

Wynn’s decision is itself written with an eye toward Supreme Court review. The ruling quotes from several free speech decisions set by the Court’s conservative majority, including NIFLA v. Becerra and McCutcheon v. FEC.

In NIFLA, a five-justice majority found a California law requiring pro-life pregnancy centers to share information about state-funded abortions is likely unconstitutional. In McCutcheon, the Court struck down limits on individual campaign contributions to political groups.

Through these citations, Wynn is pointing out that the conservative justices have already embraced the proposition that government cannot rig political discourse and should strike down partisan gerrymanders on that basis. To do otherwise, he is suggesting, would be inconsistent, or even hypocritical.

Justice Anthony Kennedy’s retirement, which took effect July 31, has left the Court with just eight justices, teeing up a difficult choice for the shorthanded Court.

The attorney for the plaintiffs in the Wisconsin case, Paul Smith, predicted that gerrymandering would quickly return to the Supreme Court when Roberts expressed his concerns about the deluge of comparable cases with which the justices would be stuck.

“The first thing I would say in response to that is that those challenges are already being brought,” Smith told Roberts. “The statewide redistricting maps in this country are challenged every 10 years in some way or another.”

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