WASHINGTON (CN) - Grappling with its second partisan gerrymandering case of the term, the Supreme Court appeared highly conflicted Wednesday on whether Maryland violated the First Amendment rights of Republicans by shifting the political makeup of their congressional district.
Seen as the swing vote in the case, Justice Anthony Kennedy expressed skepticism toward both sides of the arguments, asking counsel for the group of Maryland Republicans how much their proposal to address partisan gerrymandering would restrict lawmakers' redistricting efforts.
Kennedy posed a hypothetical in which a state with two parties, the orange and the green party, experienced a shift when voters went from voting primarily orange to primarily green. Kennedy wondered whether the state would open itself up to a court challenge if it redrew its districts to make them more competitive given its new political makeup.
"It seems to me that that would be definitely to retaliate against a certain voter," Kennedy said. "The voter for the orange party who used to be in the majority is now in the minority. He's got a complaint under your view?"
But the Reagan appointee also struggled with how Maryland Solicitor General Steven Sullivan could say a hypothetical provision in Maryland's Constitution requiring lawmakers to put partisanship first when dividing a map would be unconstitutional while the state's current map is not.
"Well, why is the hypothetical viewpoint consideration and what happened here not viewpoint consideration?" Kennedy asked. "I don't understand the difference."
Wednesday's argument in Benisek v. Lamone mirrors the court's October consideration of a gerrymandering claim brought by a group of Democrats out of Wisconsin, but with the important distinction that the case by the Maryland Republicans turns on the First Amendment while the Wisconsin voters claimed equal-protection violations.
In Maryland, after state lawmakers redrew the boundaries of Maryland's 6th Congressional District in 2011, the district lost 66,000 Republicans while welcoming 24,000 Democrats. Longtime Republican Congressman Roscoe Bartlett also his seat in the first election under the new map.
A group of Republicans in the district claimed in court subsequently that the district lines were drawn to retaliate against them based on their voting histories, which they argue violates their First Amendment rights to free speech and association.
Courts have historically not stepped into partisan gerrymandering claims, finding them to be the province of the political branches, but both the Maryland and Wisconsin voters seek to change that.
Michael Kimberly, an attorney with the Washington firm Mayer Brown who argued for the Maryland Republicans on Wednesday, said the lower court used the wrong standard to deny an injunction.
Kimberly said statements from lawmakers who drew the map and the election results in the district under the new version both strongly suggest retaliation. He argued the burden should be on the state to show it had some other compelling reason to draw the district, and that courts have applied similar tests in other voting rights contexts.
"Our position is that the burden properly understood under the First Amendment and applied in this context is the same burden that this court has recognized in the ballot access cases," Kimberly said. "It's deliberately making it more difficult for particular citizens to achieve electoral success because their views are disapproved by those in power, in this case in Annapolis."
But Justice Samuel Alito struggled to find where the Republicans' standard would end. Far from being a manageable test for courts to apply, Alito suggested the First Amendment framing would lead to courts being flooded with partisan gerrymandering claims.
"Well, let me ask you about your legal theory then, because I probably don't understand it," Alito said. "But if I understand it, I really don't see how any legislature will ever be able to redistrict."
Sullivan, the Maryland solicitor general, echoed Alito's points, noting there are numerous innocent reasons Maryland lawmakers divided the map in the way they did. While he did not rule out the court developing some standard for assessing partisan gerrymandering claims, he said the Republicans' claims are too speculative and would prove impossible for courts to consistently apply.
"I'm not saying it's impossible," Sullivan said. "And we're not taking the position that it is not possible for this court to come up with a manageable standard. We're just trying to explain why this one isn't manageable. And the court has looked for so long, I would hate for it to settle on something less than a valid and workable standard."
Justices Elena Kagan and Sonia Sotomayor proved Sullivan's most forceful questioners, as they frequently pointed to comments unearthed during discovery that suggested the map drawers set out to make a new Democratic district in Maryland.
When Sullivan noted the court has in the past said partisanship is a valid consideration for lawmakers conducting redistricting, Kagan shot back that the court would not have to abandon that principle to say Maryland went too far in drawing its districts.
"Well, Mr. Sullivan, let's say you're right, that they have not shown us how much is too much, that they have suggested that in any forum, when there's partisan advantage, the courts should be intervening," Kagan said. "We don't have to say something like that to deal with this case because, however much you think is too much, this case is too much."
The other challenges to partisan gerrymanders that are currently before the court hung heavily over the arguments Wednesday, and Justice Stephen Breyer suggested the court might be best off rehearing the cases together so the justices could compare and contrast the different standards.
"You could have a blackboard and have everyone's theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able to see perhaps different ones for different variations and maybe there are different parts of gerrymandering that rises in different circumstances," Breyer said.
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