New gerrymandering limits

Supreme Court to consider new gerrymandering limits

The justices will hear two cases Tuesday challenging congressional maps drawn to limit one party's political power.

By STEVEN SHEPARD

For the second straight year, the Supreme Court has an opportunity to establish limits on partisan gerrymandering — or go the other direction and send mapmakers an anything-goes message ahead of the 2020 census.

Republicans used their power over redistricting in many states after the 2010 election to cement control of the House of Representatives and state governments for most of the next decade. Limiting that power has become a rallying cry on the left before the next round of political map-drawing in 2021.

On Tuesday, the Supreme Court will scrutinize political maps in two states where lawmakers have openly admitted they drew congressional lines earlier this decade to favor one party, a practice that the court has long considered reining in.

In North Carolina, Republicans explicitly sought to ensure the GOP would control 10 of the state’s 13 House districts. In Maryland, Democrats openly targeted a long-time Republican congressman, altering the lines of his district to defeat him and give Democrats a 7-1 advantage in the state.

But a year ago, the Supreme Court declined an earlier chance to strike down Maryland’s congressional map or dictate firm guidelines about how far is too far when it comes to partisan gerrymandering. And one pivotal figure will be missing from this year’s cases: retired Justice Anthony Kennedy, who had looked skeptically at districts drawn for partisan advantage but never assembled a majority to set standards policing partisan map-drawing.

With Kennedy replaced on the bench by Justice Brett Kavanaugh, most experts agree new limits on gerrymandering are no more likely this time around.

“There are many plausible ways that the court could create a test and police those partisan gerrymanders,” said Rick Hasen, a law professor at the University of California-Irvine who also runs the popular Election Law Blog. “The bigger question is whether there’s the will among five justices to do that.”

Opponents of partisan gerrymandering believe the court — despite its new, more conservative lineup — might be willing to crack down because the Maryland and North Carolina cases present such blatant examples of mapmaking to benefit one party.

“The cases that are teed up before the court now mark something of a new extreme of candor … in seeking partisan advantage,” said Loyola Law School professor Justin Levitt. “They don’t have to try to figure out what the legislature was doing here. The legislature said what it was doing.”

In Maryland, a lower court ruled the day after the 2018 election that Maryland violated the First Amendment rights of GOP voters in the state’s 6th District when it redrew the lines to flip the seat away from then-Rep. Roscoe Bartlett (R-Md.), who had held it for two decades. "That was my hope," former Gov. Martin O'Malley said in a 2017 deposition. "It was also my intent to create … a district where the people would be more likely to elect a Democrat than a Republican."

The seat has remained in Democratic hands since John Delaney, now running for the Democratic presidential nomination, defeated Bartlett in 2012.

In North Carolina, federal judges had previously struck down congressional lines for unconstitutionally diluting the voting power of African-Americans by packing as many of them as possible into just two congressional districts. But when the state’s Republican legislators redrew the map in 2016, state Rep. David Lewis said the GOP should “draw the maps to give a partisan advantage to 10 Republicans and three Democrats” — one of the pieces of evidence that led federal judges to strike down the new map as a partisan gerrymander.

"The case presents the most extreme, overt and brutal partisan gerrymander this court — or any other court — has ever seen," said Emmet Bondurant, the attorney for Common Cause, which sued to have the North Carolina map thrown out.

But Jason Torchinsky, an attorney with the National Republican Redistricting Trust, a GOP group, said the Supreme Court shouldn’t try to take politics out of the redistricting process, as long as legislators don’t draw complicated districts that split cities and counties or aren’t otherwise logical.

“Is drawing for political success okay? As long as you’ve respected other districting principles, I think the answer is yes,” said Torchinsky.

Ultimately, experts say there are four justices eager to crack down on partisan gerrymandering: the court’s liberal bloc of Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

On the other side, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch have been skeptical of judicial efforts to police gerrymandering. So has Chief Justice John Roberts — who has emerged as more of consensus-builder in recent years but also voted in the majority in two key election cases as chief, striking down elements of the Voting Rights Act in a 2013 case and campaign-finance law in the Citizens United ruling.

Kavanaugh, who was an appellate judge for the District of Columbia Circuit prior to his elevation to the Supreme Court, hasn’t ruled on a major redistricting case, making him something of a wild card.

An expansive ruling striking down partisan gerrymanders “now seems much less likely given the change of the composition of the court,” said Hasen. “It’s really going to come down to Roberts and Kavanaugh.”

The Maryland and North Carolina cases are Benisek v. Lamone (18-726) and Rucho v. Common Cause (18-422), respectively.

While these cases have worked their way through the federal court system, a number of states have moved to limit the role of politics in redistricting. Just last year, voters in Colorado, Michigan, Missouri and Utah approved ballot initiatives reforming the redistricting process, while Ohio lawmakers enacted a law overhauling that state's redistricting process.

The political fight around the cases is bringing together reformers from both parties. Roy Cooper, the Democratic governor of North Carolina, and Larry Hogan, the Republican governor of Maryland, co-authored an op-ed in Monday's Washington Post under the headline, "Politicians can't be trusted to draw electoral maps."

But opponents of gerrymandering worry that a high court ruling this year that permits district maps drawn to maximize partisan advantage — or even another punt, like last year — will give both parties free rein to craft political lines in most states after the 2020 Census. The data and technology available giving politicians better tools than ever to choose their voters, they say, rather than the other way around.

“If the court doesn’t step in here, then what you saw in North Carolina and what you saw in Maryland is the new normal. It becomes ‘Mad Max’ territory,” said Levitt. “It is abundantly clear that the legislators can’t police themselves.”