WASHINGTON (CN) - With time running out before the 2020 census triggers nationwide redistricting efforts, the Supreme Court will bring its focus back Tuesday to whether there can be a test for partisan gerrymandering.
Much like when it tried to answer the question last year based on cases from Wisconsin and Maryland, the court will hear a pair of cases Tuesday from aggrieved voters who say the legislative maps in their states unfairly advantage the political party that already holds power.
The Wisconsin and Maryland cases last year offered the justices a chance to finally decide on a test by which to judge partisan gerrymandering claims, but the court did not reach the merits of either case.
It instead sent back the Maryland case on procedural grounds, while doing the same with the Wisconsin case after finding the voters who brought it had not met the requirements for standing, the key hurdle all parties must clear before bringing a federal lawsuit.
Partisan gerrymandering claims are hardly new, but the Supreme Court has yet to use one such case to develop a consistent standard by which to judge how much partisan consideration is too much when lawmakers divide up their state legislative maps. Part of the problem for the justices has been figuring out a way to rule on some cases without ushering every minor squabble over districting to the court.
"This issue has proved unusually difficult for the court over the decades," Walter Olson, a senior fellow at the Cato Institute, said in an interview. "They have struggled with it and without a conclusion in a way that is kind of unusual.”
A Changed Court
For years, the glimmer of hope for those trying to get the court to develop a test for partisan gerrymandering claims came from a 2004 concurring opinion by former Justice Anthony Kennedy, who said he was open to the court ruling on the merits of a partisan gerrymandering case if someone could present him a workable test.
The cases that came to the high court last year were in many ways designed to coax Kennedy out, but neither succeeded. The Reagan appointee retired in June and was replaced by Justice Brett Kavanaugh, whose views of partisan gerrymandering are largely unknown, leaving advocates with an unclear path forward.
In assessing Kennedy's actions on partisan gerrymandering, Olson recalled a French politician who recently joked that she named her cat Brexit because it would loudly demand to go outside only to change its mind when she opened the door.
"Kennedy did suggest that the door be opened on these theories and then was not apparently convinced enough by later cases that he walk through the door," Olson said. "It was very hard to figure out what would get Kennedy to walk through the door even after he had announced that he wanted it left open."
Michael Li, senior counsel for the Brennan Center's Democracy Program, said meanwhile that the new makeup of the court gives litigants a "cleaner slate.”
"Ironically it in some ways makes it easier,” Li said in an interview, “because although Justice Kennedy was in some ways the swing or perceived as the swing, he was a very inscrutable swing and so people were writing love letters not really knowing what would appeal to him from that standpoint.”
A Map That ‘Held Through the Tsunami’
Into this new environment comes a group of Democrats from North Carolina who say Republican efforts to redraw the state's map in 2016 have cemented the GOP's control over the state in a way the leaves it immune to even the largest swings of popular sentiment.