Bloomberg: Supreme Court Justices Question Suits Over Partisan Gerrymandering

This article was originally published by Bloomberg.

Conservative justices questioned whether judges should be able to toss out politically gerrymandered voting districts, as the U.S. Supreme Court weighed two congressional maps drawn to favor one party over the other.

The justices heard arguments Tuesday on a North Carolina map, drawn by Republicans who explicitly sought a partisan advantage, and a Maryland voting district designed by Democrats to oust a Republican lawmaker.

Chief Justice John Roberts and new Justice Brett Kavanaugh, the likely swing justices, asked questions of both sides and didn’t give a clear indication how they will vote.

Kavanaugh said "extreme partisan gerrymandering is a real problem for our democracy." But he hinted that court intervention might not be warranted, asking about other steps to control the practice. He pointed to states that have set up independent commissions to draw maps, congressional proposals to address redistricting and the prospect of state court rulings to curb gerrymandering.

"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 asked. His comments followed similar queries from Justice Neil Gorsuch, a fellow appointee of President Donald Trump.

Roberts questioned the Democratic-drawn Maryland district, saying it "does seem like a situation where the state penalized" people for their past votes.

But the chief justice also reiterated concerns he expressed in previous gerrymandering cases, when he said he worried the court would have to rule in favor of one party or another every time a legislature drew a new map.

In the North Carolina case, Roberts questioned the notion that maps could reliably be drawn to assure victory for one party. "A lot of the predictions in this area prove to be very, very wrong very often," he said.

The court has never struck down a map as too partisan, but it also hasn’t explicitly barred challenges. Justice Anthony Kennedy’s retirement last year, and his replacement by Kavanaugh, means the court may now have the five votes needed to say that courts lack the power to consider partisan gerrymandering cases. The justices sidestepped the issue a year ago.

Uncompetitive Elections
The stakes for American democracy are high. Critics of partisan gerrymandering say the practice leads to uncompetitive elections that don’t reflect the will of the voters. Others say judges should be wary of entering such a deeply political fray, contending that judges lack any principled way to separate legitimate partisan considerations from unconstitutional ones.

The court’s rulings will shape the next round of map-drawing, which will take place around the country after the 2020 census. Right now Republicans are the more frequent beneficiaries of gerrymanders, largely because their electoral success in 2010 let them draw many of the current maps.

When they drew the map in 2016, North Carolina Republicans were explicit about trying to make 10 of the 13 seats into safe GOP districts. They put the map in place in just two weeks, right after a three-judge panel struck down parts of an earlier map for relying too heavily on race.

North Carolina Republicans won 10 of 13 seats in 2016, when Democrats got 47 percent of the statewide vote. In 2018 Republicans took nine seats, with one awaiting a re-vote, even though Democrats got 48 percent of the overall vote. Excluding one district where a Republican ran unopposed, Democrats’ share of the vote in 2018 was 51 percent.

‘Diluting Their Votes’
The North Carolina map drew skepticism from the court’s liberal justices.

"You’re discriminating on the basis of a group’s speech and diluting their votes accordingly," Justice Sonia Sotomayor said.

Justice Ruth Bader Ginsburg suggested it violated the Constitution’s "one person, one vote" principle.

"Does one person have one vote that counts equally with others if the impact of her vote is reduced based on her political party?" she asked Paul Clement, the lawyer defending the map on behalf of North Carolina Republicans.

Clement said opponents of the map were trying to require "proportional representation," or at least use that as the baseline for determining whether lines were too partisan. He got support from the court’s conservative justices.

"You would like us to mandate proportional representation," Gorsuch said to Emmet Bondurant, one of the lawyers challenging the map.

Kavanaugh seemed less skeptical of proportional representation than his fellow Republican appointees. "Isn’t proportional representation a judicially manageable standard?" he asked Clement in the first argument.

But in the Maryland case he said two now-retired justices, Kennedy and Sandra Day O’Connor, "made very clear" that the Constitution doesn’t require proportional representation.

The North Carolina map is being challenged in two lawsuits by two dozen voters, the state Democratic Party, the state chapter of the League of Women Voters, and the interest group Common Cause.

The Supreme Court upheld the use of independent redistricting panels in 2015, though some observers have said the 5-4 ruling could be overturned by a court that has become more conservative since then. The questions by Gorsuch and Kavanaugh suggested they were assuming those panels would remain a possibility.