U.S. Supreme Court justices appear divided over the role courts should play in cracking down on partisan gerrymandering in Maryland and other states across the country.
The justices heard oral arguments Tuesday morning in cases alleging that state legislators in Maryland and North Carolina went too far when they used politics to redraw congressional districts in their states. The combination of the two cases underscored the fact that both parties engage in the practice – Democrats drew the lines in Maryland; Republicans crafted them in North Carolina.
They’re just the latest in a string of political gerrymandering cases to land in the high court, and the justices grappled with thorny legal issues, including whether courts can hear cases challenging congressional maps as excessively partisan, and – if so – how they should determine what constitutes extremely partisan gerrymandering.
The court’s decisions in the high-stakes cases could change which district maps are used in Maryland and North Carolina in the 2020 elections, and could impact other states’ redistricting plans following the 2020 Census and beyond.
Conservative justices on the bench appeared reluctant to weigh in on whether state maps were extremely partisan. They questioned whether states didn’t have other remedies to ensure that voters had political representation, and they warned of opening the floodgates to future legal challenges.
Justice Neil Gorsuch, a Trump appointee, said the court was being told that it “must act because nobody else can as a practical matter.” But “is that true?” he asked, questioning whether states could impact the process in other ways. He pointed to his home state of Colorado, where voters last year approved a measure to create an independent commission to draw congressional and legislative district lines after the 2020 Census.
“Why should we wade into this,” Gorsuch asked, “when that alternative exists?”
Justice Brett Kavanaugh, another Trump appointee, echoed some of Gorsuch’s concerns.
He questioned the argument that only the Supreme Court can solve the problem of extreme partisan gerrymandering. “There is a fair amount of activity going on in the states, recognizing the same problem that you’re recognizing,” he said.
Court watchers have pegged Kavanaugh as a pivotal vote in these cases. He replaced retired Justice Anthony Kennedy, who was seen as a swing vote on the issue of partisan gerrymandering.
Chief Justice John Roberts, a George W. Bush appointee, pressed Maryland Solicitor General Steven Sullivan on the claim that the First Amendment rights of Republican voters in the 6th District were violated when the lines were redrawn following the 2010 Census.
“It does seem that this is a situation where the state is taking retaliatory action against Republicans who were in that district and had a more effective vote, and penalizing them for exercising their right to vote by moving them out to a different district,” Roberts said.
Still, he noted that partisanship will always play a “significant role” in redistricting. “Because you can always do it to one degree or another, it is always going to have an effect.”
Maryland’s 6th District is at the heart of the case. Following the 2011 redistricting that brought more Democrats into that region while removing Republicans, a Democrat ousted longtime Republican Rep. Roscoe G. Bartlett in 2012.
The court’s liberal justices, meanwhile, appeared more interested in having the court take a stand on this and future political gerrymandering challenges.
“It can’t be that simply because the Constitution says that a particular act is in the hands of … one branch of government, that that deprives the courts of reviewing whether that action is constitutional or not,” said Justice Sonia Sotomayor, an Obama appointee.
Paul Clement, an attorney who defended the North Carolina map to the court, warned the justices that if they “get in the business of adjudicating these cases” that such redistricting challenges would flood the court.
“And once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics,” Clement said.
Justice Ruth Bader Ginsburg, a Clinton appointee, disagreed. The same thing was said about the “one person, one vote,” rule that aims to give citizens equal legislative representation, she said.
“That was the exact same argument about don’t go to one person-one vote, the courts are going to be flooded with cases and they’ll never be able to get out of it. That’s not what happened,” Ginsburg said.
Justice Stephen Breyer, another Clinton appointee, also appeared open to finding a way for the courts to get involved. He questioned whether the justices could find a way “to catch real outliers.”
Of course, politicians will consider politics, he said. “Our problem,” he added, is to determine when partisan gerrymandering is “too much.”
The court is expected to issue opinions in the Maryland and North Carolina cases before its term ends in June.
While Maryland Gov. Lawrence J. Hogan Jr. (R), who has long advocated for an independent commission to draw political boundaries, may introduce legislation in the waning days of the General Assembly session to change the state’s congressional lines before the 2020 election, the Democrats who control the legislature are certain to ignore it. Hogan appeared at rallies in front of the Supreme Court building Tuesday with other advocates of redistricting reform, including former California Gov. Arnold Schwarzenegger (R).
If the Supreme Court rules that a new Maryland congressional map should be put in place before the 2020 election, that decision will likely necessitate a special session of the legislature later this year to draw it.
Robin Bravender is Washington bureau chief of States Newsroom.