Maryland’s congressional map boundaries are back on the Supreme Court docket.
The court on Friday ordered that the case be reheard in March, along with a challenge to the congressional district boundaries in North Carolina.
Both maps were ruled by lower courts to constitute unconstitutional partisan gerrymanders. Maryland’s 6th District, drawn explicitly to favor Democrats over Republicans, was ordered to be redrawn by a federal three-judge panel in November; Attorney General Brian Frosh (D) appealed the ruling to the Supreme Court.
The North Carolina map was ruled by a lower court to have resulted in unconstitutional partisan gerrymandering in multiple districts, all to favor Republicans.
Both cases have been at the Supreme Court before.
The Maryland case, Benisek v. Lamone, was heard last March, when the justices punted the case back to a three-judge panel on procedural grounds.
Supporters of redistricting reform, such as the good government group Common Cause, hailed the docketing order on Friday as having the potential to set a national precedent on how to draw fair congressional maps in time for the 2022 elections, following the 2020 U.S. Census.
The high court has never ruled on a partisan redistricting case before. For years, courts of all levels have struggled with how to distinguish, from a judicial perspective, illegal partisan gerrymandering from basic, tough decisions required during mapmaking.
That issue came up during an initial review of the Supreme Court last March.
“However much you think is too much, this case is too much,” Justice Elena Kagan said of Maryland’s 6th District reconfiguration.
Instead of deciding the merits of the argument, the Supreme Court issued a narrow ruling on whether a lower court was wrong to decline to issue an earlier injunction, and allowed the case to move to full arguments back in the lower court.
But the composition of the Supreme Court now, with new, conservative Justice Brett Kavanaugh on board, could swing the court’s will to decide one way or another on the issue of partisan gerrymandering. Bloomberg reported that Kavanaugh has never ruled in a gerrymandering case.
The case is back at the Supreme Court after the three-judge panel in Baltimore, which called the 6th District boundaries “repugnant to representative democracy,” set a March 7 deadline for drawing a new map. The judges said that if the legislature and Gov. Lawrence J. Hogan Jr. (R) fail to agree on new districts, the court would draw its own lines.
Hogan, who has long pushed to remove partisanship from the political mapmaking process, established an emergency commission to redraw the lines; the commission gathered for a first meeting in Annapolis on Friday morning. It was unclear what impact the Supreme Court’s order might have on the commission, but a Hogan spokeswoman said the organization would continue working to present a new district plan.
“As the law currently stands, this district is unconstitutional and must be redrawn, which means that we need to put in place a process to redraw the district in an open and transparent manner, and do so in time to involve our legislative partners. Now more than ever the commission’s work is essential to ensure Maryland is in a position to comply with the law and the Supreme Court’s ruling,” the spokeswoman, Amelia Chasse said.
In addition to initial organizational work, the commission set future hearings, including dates for public hearings on the 6th District’s boundaries in Frederick County (Jan. 14), Montgomery County (Jan. 31) and Allegany County (Feb. 6).
The Supreme Court’s decision to again take up the cases came after several states approved changes to their redistricting processes through ballot initiatives and new laws in 2018.
“Partisan gerrymandering is not just a Republican problem or a Democrat problem, it is a politician problem,” said Kathay Feng, Common Cause national redistricting director. “Politicians have shown time and again that they cannot resist the temptation to draw maps that protect their power and party at the expense of the American people. We hope the Supreme Court will put people over party.”
Common Cause has filed briefs opposing Maryland’s gerrymander and has also backed Maryland legislation that would create an independent commission to redraw the map.
“Political power brokers explicitly silence Maryland voters through gerrymandering,” said Damon Effingham, executive director of Common Cause Maryland. “We ask the Supreme Court to stop politicians from entrenching themselves in power against the people’s will.”
The court is expected to decide the Maryland and North Carolina cases by June.