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.
The case began when a panel of three federal judges struck down two of the state’s districts as an unconstitutional racial gerrymander in 2016, forcing lawmakers to make another attempt at dividing up the state.
Seeking to avoid another challenge on the basis of race, the Republican lawmakers tasked with redrawing the map instructed a mapmaking expert to follow traditional redistricting principles without considering race.
But they also told their expert to preserve the 10-3 majority Republicans enjoyed in the state’s congressional delegation. One of the lawmakers said he proposed keeping that partisan balance intact “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
The expert delivered and while Republicans won 53 percent of votes statewide, they won 10 of the 13 seats up for grabs in the 2016 election.
In August 2016, Common Cause, the North Carolina Democratic Party and 14 voters filed suit challenging the map as a partisan gerrymander. They were joined a month later by the League of Women Voters and 12 individual voters. Together, the groups said the map violated the equal protection clause and the First Amendment, as well as the elections clauses in Article I of the Constitution.
A three-judge panel struck down the map as unconstitutional in 2018, but the Supreme Court sent the case back after it decided the Wisconsin case last year. The lower court acted quickly, ruling within two months that, unlike the Wisconsin plaintiffs, the North Carolina group had standing because it included voters in each of the state’s districts.
Now before the Supreme Court, the state urges the justices to step out of the fight, because allowing claims like the ones raised in this case would invite challenges to “every district in every state.” They say courts were never intended to impose limits on the use of political interest in gerrymandering and that Congress should be the one to resolve the issue.
“The court’s persistent inability to discern any manageable standards for adjudicating partisan gerrymandering claims is no accident,” the lawmakers’ brief states. “The difficulty is not the failure to perceive a judicially manageable test that lies just beyond the judicial grasp. The problem is far more fundamental: Partisan gerrymandering is simply not amenable to a judicial solution.”
This concern about limits is directed squarely at the justices’ concern of ruling in a way that would cause the court’s docket to become littered with partisan gerrymandering challenges.
“One thing that hasn’t changed is the court is still concerned about limits,” Li, with the Brennan Center, said. “I mean, the court doesn’t want to get in the business of having to decide every boundary in the country for everything from city council districts to Congress. That’s something that it’s made very clear that it doesn’t want to do, and so the question is, if it strikes down the North Carolina map, how it does so in a way that doesn’t open the door to hundreds of cases?”
North Carolina also says the voters do not have standing because even though they have a voter in each district, they are still challenging the entire state map as a whole.
The groups challenging the maps say it is possible to develop a clear enough test that only the worst gerrymanders come through the courthouse doors. They warn at the same time that if the court does not step in now, politicians will see it as a green light to carve up their states to cement their political advantage.
“If this court holds that partisan gerrymandering claims are nonjusticiable, however, the 2016 plan will be the wave of the future,” the League of Women Voters said in its brief. “In the 2020 cycle and beyond, both parties will emulate – or exceed – its abuses, openly entrenching themselves in power using the full array of modern mapmaking technologies.”
Li said the facts of the North Carolina case are “stark” and clear in a way that many of the other gerrymandering cases the court has considered are not. The effect of the map became especially clear in the 2018 election, when Republicans held onto their advantage even as Democrats made sweeping gains in other similarly divided states across the country.
“The tsunami occurred all over the country and in places like California where you have a commission drawing maps, a lot of districts flipped and that’s because the maps allow for that kind of responsiveness,” Li said. “But the voters were so carefully picked in the North Carolina districts that even a tsunami couldn’t overcome them and that’s remarkable.”
A Second Chance in Maryland
Meanwhile, a group of Maryland Republicans say they too have a path for the justices to weigh in on partisan gerrymandering claims. Their case concerns Maryland’s 6th Congressional District, which the voters say Democrats in the state redrew specifically to disrupt the longtime Republican stronghold.
After dipping the 6th District into reliably liberal Montgomery County, the new plan almost exactly flipped its partisan makeup, shifting it from a district with 46 percent of its voters registered as Republicans to one with 44 percent registered as Democrats.
Unlike in North Carolina, the Maryland case rests entirely on the First Amendment, with the Republicans saying the map violates their right to association.
The Maryland officials named in the suit say they the goal of the redistricting was innocent – mainly aimed at doing away with one district that spanned the Chesapeake Bay and complying with voting rights laws. They also note that, unlike in other gerrymandering cases, Republicans still have their say in state politics, as the state has elected a Republican governor in the last two elections.
The officials agree that the court should find a way to develop a partisan gerrymandering test, but they say the Maryland Republicans have not offered them anything to work with.
“This court can and should determine a manageable standard, one that lower courts can apply to remedy abusive partisan gerrymanders such as those that entrench in power a political party whose adherents enjoy only minority support,” the officials’ brief states. “This is not such a case and the decision below fails to supply the much-needed standard.”
But the voters say the type of work courts will have to do to evaluate claims under the First Amendment is a “familiar exercise.” They also say it will still allow lawmakers to apply traditional principles during the redistricting process, even allowing some measure of politics to come into play.
“The First Amendment framework provides a more workable and analytically sound approach to evaluating the problem of partisan gerrymandering – it focuses on what kind of political considerations are impermissible, not just how much political consideration is too much,” the brief from the Maryland voters states. “Many political considerations that play important, proven roles in redistricting remain lawful under the First Amendment.”
The cases the court will consider Tuesday are of particular interest because the 2020 round of elections will be the last conducted before that year’s census ushers in a new round of map drawing.
Li said the claims in the North Carolina case, especially the explicit instruction of the lawmakers that the mapmaker keep in place the 10-3 Republican advantage, track with hypotheticals that appeared to trouble justices during oral arguments in the partisan gerrymandering cases last term.
“They actually wrote in writing that you have to have 10 out of 13 districts be Republican and that seems to fall squarely within a hypothetical that even Chief Justice Roberts and Justice Alito seemed to suggest at the Wisconsin and the Maryland arguments last term would be problematic,” Li said.
Olson said Roberts might be a justice to watch particularly carefully during the case, considering his desire to keep the court as far above politics as possible and the risky political implications that partisan gerrymandering decisions pose.
“He really, really cherishes and guards the suprapolitical legitimacy, the idea that it is not just politics, it is not just Obama judges and Trump judges and all the rest of it,” Olson said. “He has a record of mostly following what he believes is the logic of his constitutional interpretation, even if he’s not necessarily glad that he had to have the case. But that might make him look extra hard if someone comes up with a novel or clever way of again sidestepping it or of leaving theories open in the future even while rejecting particular solutions.”