Supreme Court Justices Struggle With Where to Draw the Line on Partisan Gerrymandering

March 27, 2019 by Dan McCue
Supreme Court Justices Struggle With Where to Draw the Line on Partisan Gerrymandering
The entrance to vote at the Herbert Young Community Center polling place in Cary, N.C., on November 6, 2012. The State's 13 congressional districts will remain in place and so will the November 6, 2018, election, a federal three-judge panel ruled on Tuesday, Sept. 4, 2018. (Shawn Rocco/Raleigh News & Observer/TNS)

As the U.S. Supreme Court waded into a pair of gerrymandering cases on Tuesday, a majority of the justices struggled mightily with the question of just how a federal court can fairly determine when state legislatures have been too partisan in drawing maps for voting districts.

While the high court has decided several cases over the years having to do with gerrymandering on the basis of race, it has never struck down a voting map as an unconstitutional partisan gerrymander.

Instead, the justices have said that because redistricting itself is a political act, courts would be hard-pressed to apply a bright line legal standard that would separate acceptable partisanship from the kind that is unconstitutional.

The cases before the court on Tuesday were long-running challenges to congressional redistricting plans that gave an advantage to Republicans in North Carolina and to Democrats in Maryland.

And the most watched justice was newcomer Brett Kavanaugh, who has never had to rule on gerrymandering before and could be the deciding vote in these cases.

“Extreme partisan gerrymandering is a real problem for our democracy. I’m not going to dispute that. But there’s a fair amount of activity going on in the states to deal with it,” Kavanaugh said.

State supreme courts have ruled on the issue, he noted, and a number of states, including Colorado, Michigan and Utah, had ballot initiatives in the last election that established nonpartisan redistricting commissions.

“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?” he asked.

Justice Neil Gorsuch was among those in the chamber who seemed to agree.

“Why should we wade into this when there are alternatives that exist?” he asked.

In making these assertions both justices appeared to be heeding a warning from Paul Clement, the Washington lawyer representing North Carolina’s legislature, who had earlier told them, “If you get into this business, once you get into the political thicket, you will never get out.”

But Justice Stephen Breyer was unbowed by the comment, proposing a numerical test that would say a line is crossed when a political party in the minority ends up with two-thirds of a state’s congressional seats.

When he was done describing it and looked to his colleagues on the bench, however, he appeared to have no takers.

And in that way Tuesday’s opening arguments were very much like the arguments before the court last year when it heard the Maryland case, Lamone v. Benisek, for the first time alongside a separate pending case from Wisconsin.

In Lamone, a group of Republican voters claim Democratic state lawmakers dramatically redrew a district that had long been a GOP stronghold so that it included scores of additional Democrats.

In fact, the new map drafted after the last census moved 350,000 Republicans out of the district and 360,000 Democrats in.

The plaintiffs contend there was no good reason to redraw the district that way and that the new district violated the First Amendment by diluting their voting power.

After hearing the case last year, the justices acknowledged partisanship can be unconstitutional in some instances, but failed to come up with a reliable legal test for determining when.

They returned the case to the U.S. District Court in Maryland, directing a three-judge panel to try to resolve the matter. When it did, in favor of the voters, the state appealed, sending the case right back to the justices.

Which was likely one reason some of them insisted a workable solution had to be found, sooner rather than later.

“We’re leaving it to the professional politicians who have an interest in perpetuating their own representation,” Justice Elena Kagan said.

“We need to have a number or some formula, otherwise, every case is going to come to this court,” an exasperated Justice Gorsuch said.

The North Carolina case, Rucho v. Common Cause, is an appeal from an August 2018 decision in a three-judge panel in Raleigh that said Republican legislators had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates.

In 2016, the court noted, Republican congressional candidates garnered  53 percent of the statewide vote, but still managed to win in 10 of the 13 congressional races that year. In 2018, despite an increase in the Democratic vote, Republicans still managed to hold onto their 110 districts.

On Tuesday, Chief Justice John Roberts described the situation in North Carolina as “an extreme case,” but then cut right to the heart of the matter. It isn’t enough for the justice to say either map in unlawfully flawed,  “we have to find a rule that will apply to other states” for determining when partisanship is so blatant that it crosses a constitutional line.

A decision in the two cases will be issued by late June.

A+
a-
  • gerrymandering
  • partisanship
  • Supreme Court
  • In The News

    Health

    Voting

    Supreme Court

    Special Counsel Jack Smith Asks the Supreme Court to Rule Quickly on Whether Trump Can Be Prosecuted

    WASHINGTON (AP) — Special counsel Jack Smith on Monday asked the Supreme Court to take up and rule quickly on... Read More

    WASHINGTON (AP) — Special counsel Jack Smith on Monday asked the Supreme Court to take up and rule quickly on whether former President Donald Trump can be prosecuted on charges he plotted to overturn the 2020 election results. Smith made his request for the court to... Read More

    December 4, 2023
    by Dan McCue
    Justices Appear Divided Over Purdue Pharma Bankruptcy Deal

    WASHINGTON — The Supreme Court appeared divided on Monday over a bankruptcy deal struck by Purdue Pharma that would immunize... Read More

    WASHINGTON — The Supreme Court appeared divided on Monday over a bankruptcy deal struck by Purdue Pharma that would immunize the Sackler family, its one-time owners, from civil lawsuits for their role in the opioid crisis.  The closely watched case is considered to be among the most... Read More

    November 30, 2023
    by Tom Ramstack
    Supreme Court Leans Toward Reducing Enforcement Authority of Federal Agencies

    WASHINGTON — The Supreme Court seemed ready Wednesday to cut back on the authority of federal agencies to enforce their... Read More

    WASHINGTON — The Supreme Court seemed ready Wednesday to cut back on the authority of federal agencies to enforce their regulations through fines or seizures of property. Questions from the conservative majority of justices during a hearing focused on whether the agencies were committing unconstitutional procedural... Read More

    November 30, 2023
    by Dan McCue
    Chaos Reigns as Democrats Vote to Subpoena Crow, Leo in SCOTUS Probe

    WASHINGTON — A Senate Judiciary Committee hearing on Thursday became the latest venue for Capitol Hill dysfunction as Democrats on... Read More

    WASHINGTON — A Senate Judiciary Committee hearing on Thursday became the latest venue for Capitol Hill dysfunction as Democrats on the panel approved issuing subpoenas to billionaire Harlan Crow and influential conservative Leonard Leo as part of an ongoing investigation into alleged ethical lapses by Supreme... Read More

    November 28, 2023
    by Dan McCue
    Justices Asked to Parse Accelerated Sentencing Guidelines

    WASHINGTON — The Supreme Court returned to the bench for its December session on Monday, considering a pair of cases... Read More

    WASHINGTON — The Supreme Court returned to the bench for its December session on Monday, considering a pair of cases whose outcome could have sweeping consequences for the sentencing of recidivist offenders charged with federal crimes. The cases, which were consolidated for the sake of oral... Read More

    November 17, 2023
    by Tom Ramstack
    Supreme Court Blocks Florida Law Banning Kids From Drag Shows

    WASHINGTON — The U.S. Supreme Court on Thursday blocked a Florida law that bans child access to drag shows, saying... Read More

    WASHINGTON — The U.S. Supreme Court on Thursday blocked a Florida law that bans child access to drag shows, saying it violates First Amendment free speech rights. Gov. Ron DeSantis and his supporters enacted the law to protect children from what they consider corrupt influences. The... Read More

    News From The Well
    scroll top