Supreme Court Still Appears Wary Of Doing Something About Partisan Gerrymandering

WASHINGTON ― A majority of Supreme Court justices on Tuesday appeared hesitant to weigh in and limit the extent to which lawmakers can take politics into account when drawing electoral districts.

Lawyers representing plaintiffs in a closely watched redistricting case sought to convince the justices that there exists a “manageable standard” they could use to determine when lawmakers have relied too much on politics while drawing districts. But many of the justices on the high court suggested that what the plaintiffs really wanted was for the court to endorse a proportional representation, where the political makeup of each congressional delegation simply reflects the partisan makeup of the state.

The Constitution does not require proportional representation, and the plaintiffs’ lawyers repeatedly indicated that was not what they were calling for.

The case at the Supreme Court involves two consolidated cases out of North Carolina and Maryland, respectively. In North Carolina, a group of Democratic voters, the state Democratic Party and two good government groups say state Republicans committed a number of constitutional violations when they drew the state’s current congressional maps in 2016, after a court found they leaned too heavily on race when drawing a previous map. For the 2016 map, Republicans required that their mapmaker draw a plan that continued to give them control of 10 of the state’s 13 congressional seats. Republicans were open about their intentions, but say they were just trying to make it clear that they were drawing their maps based on political, and not racial, considerations.

The plaintiffs say Republicans violated the First and 14th Amendments, which guarantee freedom of association and equal protection of law. They also say the gerrymandered North Carolina map violates Article I of the U.S. Constitution, which says that “the people” shall choose their representatives and only gives state lawmakers the ability to set the “time, manner and place” of elections.

In Maryland, Republicans in the state’s 6th Congressional District say Democrats discriminated against them when they redrew the state’s districts in 2011. Democrats have admitted to drawing the lines to flip the district from Republican to Democratic control. The plaintiffs in the case say that intentional flip amounts to government punishment for their political views. The Supreme Court heard arguments last year at an earlier stage in the case, but declined to weigh in.

Three-judge panels in both North Carolina and Maryland have ruled in favor of the challengers and struck down the congressional maps in place.

The Supreme Court has wrestled with the issue of partisan gerrymandering for decades. While the justices have repeatedly suggested there is a standard for determining when gerrymandering for partisan gain goes too far, they have never outlined what that standard is. Justice Anthony Kennedy was seen as the key swing vote on partisan gerrymandering, but he passed on the chance to do anything about it in two cases that came before the court in his final term. After Justice Brett Kavanaugh replaced Kennedy on the court, many legal scholars believed the chances of the high court doing anything about partisan gerrymandering dwindled significantly.

A Supreme Court ruling in favor of the plaintiffs could potentially reshape American politics. It would set a clear limit on how far lawmakers can benefit their own party when they draw new district lines, forcing more competitive elections. The next round of redistricting, which happens once a decade, will take place in 2021.

Conversely, lawmakers would get a significant amount of power if the Supreme Court says there is no way to determine whether or not a gerrymander is unconstitutional. Freed from the threat of judicial review, lawmakers could use new technology and tools to surgically carve up districts to maximize political advantage. Gerrymandering reform would have to come from laws or ballot initiatives that could limit how politicians draw the map or take it out of their hands entirely. Advocates could also turn to state courts to try and strike down gerrymanders under state constitutions.

This is a developing story. Check back for updates.

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