Partisan redistricting

Justices cast doubt on partisan redistricting

But it was unclear after oral arguments in a key case whether there are five votes to strike it down.

By STEVEN SHEPARD

The Supreme Court on Wednesday grappled with a case with the potential to reorder the country’s political landscape: How much gerrymandering is too much gerrymandering?

Republicans who sued to overturn the congressional district lines that Maryland implemented after the 2010 census map found allies in the court’s four liberal justices, who expressed sympathy for their claims during oral arguments.

What’s less clear is whether those four can recruit another justice to their side — the most likely targets would be Chief Justice John Roberts or Justice Anthony Kennedy, typically the high court’s swing vote on election law cases. Both asked tough questions, but neither tipped his hand.

At issue was Maryland’s 6th Congressional District, represented for 20 years by a Republican. After the 2010 census, Democrats in the state legislature and the then-Democratic governor redrew the district lines to move large numbers of Democratic voters into the district. Democratic Rep. John Delaney won the seat in 2012 and was reelected twice after.

A ruling against the map could fundamentally alter the redistricting process in the 37 states where the legislature draws the lines, limiting the parties’ ability to create maps to their advantage. But even if the court strikes down the map, the justices on Wednesday made clear they are still wrestling with whether the case could result in clear guidelines for partisan gerrymandering in the future.

Justice Elena Kagan said the court doesn’t need to dictate firm standards for redistricting to know that “this case is too much” — in other words, that Maryland’s map goes too far in partisan gerrymandering. She pointed to statements from then-Gov. Martin O’Malley and other Democrats that the sole purpose in drawing the districts the way they were configured was to increase the party’s advantage in the congressional delegation.

“From the governor to Congressman [Steny] Hoyer, people were very clear about what they were trying to do here, which is to create another Democratic district,” said Kagan.

Justice Sonia Sotomayor agreed. Questioning Maryland Solicitor General Steven Sullivan, she said the Republican plaintiffs had presented “some pretty damning” evidence to suggest lawmakers were driven by politics.

“You have your own governor saying that he felt ‘duty-bound’ to make sure that his party won,” she said.

And Justice Stephen Breyer said the map “seems like a pretty clear violation of the Constitution — in some form.” He asked whether there was “a practical remedy” for fixing it but suggested the court should do something about what he repeatedly called “extreme gerrymandering.”

The court’s conservative justices, on the other hand, appeared unwilling to strike down the Maryland map.

“I really don’t see how any legislature will ever be able to redistrict” if the Republican plaintiffs are successful, Justice Samuel Alito told Michael Kimberly, the plaintiffs’ attorney. “This court said time and again that you can’t take all partisan advantage out of redistricting.”

And Justice Neil Gorsuch pointed out during the hourlong hearing that Maryland voters approved the map in a referendum at the ballot box. Ballot Question 5 in 2012 passed with more than 64 percent of the vote.

Sullivan seized on Gorsuch’s favorable line of questioning, calling a potential ruling against the map “a blow against democracy.”

Early in the oral argument, Roberts suggested the voters who brought suit against the map didn’t need an injunction to halt this year’s elections because “elections have already been held [under the lines] in 2012, 2014 and 2016. … The elections of 2012, 2014 and 2016 suggest you’re not going to be irreparably harmed this time” if the 2018 elections go forward.

Later in the hearing, though, Roberts questioned Sullivan about the shape of the district — which runs from the panhandle of Western Maryland to Potomac, a wealthy Washington suburb. He said the district “doesn’t seem to have any internal logic” to its shape.

“I mean, both have farms,” Roberts joked, adding that the farms in western Maryland “are real farms.”

Kennedy, at the outset, pressed Kimberly about the disruption to Maryland’s elections this year if the court strikes down the map. The state’s primary is in late June.

That concern was shared by the court’s liberal justices, too.

“I think it’s much too late, even if you are successful, for there to be any change to the 2018 election,” Justice Ruth Bader Ginsburg said early in the hearing.

But later in the hearing, Kennedy expressed reservations about the map, agreeing that the state’s partisan intent was clear.

The Maryland case, Benisek v. Lamone, is one of two redistricting cases before the high court this term. The other challenges the Republican-drawn state legislative map in Wisconsin. The Supreme Court heard that case last fall but has not issued a ruling.

Breyer, during the oral arguments Wednesday, proposed combining that case with Maryland and a third case — a lower court struck down North Carolina’s congressional map on the grounds that it was an improper partisan gerrymander. But the Supreme Court has set aside that ruling for now and allowed the 2018 elections to take place under the current map.

“They all have slight variations, obviously,” Breyer said. But he argued — more to his colleagues on the bench than to the attorneys before the court Wednesday — for hearing all three together to examine the legal arguments and develop a clear standard.

In this case, Breyer said, the court has evidence in the form of statements by lawmakers and the governor that they drew the map to achieve partisan advantage. But future mapmakers won’t be so open about their intentions, and the court should set guidelines, he said.

“The people who do the gerrymandering,” Breyer said, “are not stupid.”