Supreme Court to weigh partisan gerrymandering Wednesday

Supreme Court to weigh partisan gerrymandering Wednesday
© Greg Nash

The Supreme Court on Wednesday will hear arguments in a Maryland case brought by Republican voters who are challenging the way Democratic state officials drew the boundaries of a sprawling congressional district now held by Rep. John DelaneyJohn Kevin DelaneyMcAuliffe won't rule out 2020 run in Iowa campaign swing Did Congress just settle for less than best plan to reform housing finance? 2020 Dems jockey for position before midterm elections MORE (D).

Republicans in the district claim state officials intentionally and unconstitutionally packed Maryland’s 6th Congressional District with Democrats to beat the Republican incumbent, then-Rep. Roscoe Bartlett.

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The case opens a second front in the war over partisan gerrymandering. In October the justices heard arguments in Gill v. Whitford, a case out of Wisconsin challenging the redistricting of legislative districts.

But in that case, Democrats were arguing Republican officials had unfairly and strategically put them at a disadvantage.

Attorney Michael Kimberly, representing the Maryland voters in Wednesday's case, argues state officials retaliated against Republican voters for supporting Bartlett for two decades when they redrew the districts lines in 2011, violating their First Amendment rights.

In briefs filed in court, Kimberly said Democrats shuffled half of the district’s 720,000 residents — far more than was necessary to correct the 10,000-person imbalance in the district’s population following the 2010 census.

The swap of Republican voters for Democratic voters, he said, created a more than a 90,000-voter swing in favor of registered Democrats — a drastic change for a district in which 230,000 voters typically cast ballots in midterm elections.

During the October arguments in the Wisconsin case, justices on both sides of the ideological spectrum expressed concerns with partisan gerrymandering, with Justice Samuel Alito at one point calling it “distasteful.” But the justices grappled with how to come up with a manageable standard to determine when legislative officials have gone too far and unconstitutionally injected political bias into the redistricting process.

The focus is now on Justice Anthony Kennedy, often the court’s swing vote, who left the door open for the court to resolve the issue in 2004 if a “limited and precise” standard could be found.

But Maryland officials argue no map could survive the status quo ante standard that the challengers’ in Wednesday’s case have proposed.

“The plaintiffs’ novel application of First Amendment jurisprudence, which would condemn a competitive congressional district as an impermissible partisan gerrymander, thus fails to resolve the essential problem of determining when the inherently political redistricting process has gone ‘too far,’ ” the state attorneys said in court briefs.   

During the October arguments, Chief Justice John Roberts also raised concerns that a ruling for the plaintiffs would leave the Supreme Court open to charges it had effectively ruled for Democrats.

Legal analysts say the Maryland case, known as Benisek v. Lamone, settles that problem, giving the justices an opportunity to rebuke both parties for partisan gerrymandering at once. 

“Wisconsin involved a challenge led by Democratic voters to a map that was drawn to favor the Republican Party. And Maryland involves a challenge by Republican voters to a map in Maryland that was drawn to advantage Democrats,” said Thomas Wolf, an attorney at the Brennan Center for Justice’s Democracy Program. 

“Now the court has the opportunity to deal setbacks to both parties in gerrymandering, which is important because both parties have done so.” 

Most observers argue the fact that the justices would take up a second case involving partisan gerrymandering likely means the court is ready to set new limits on the lengths state legislatures can go in using political considerations to draw district maps.

In a talk with students at Georgetown University last week, former Attorney General Eric HolderEric Himpton HolderDem lawmakers slam Trump’s declassification of Russia documents as ‘brazen abuse of power’ Dem lawmaker jabs Trump call for transparency by asking for his tax returns Eric Holder: Trump releasing docs on Russia probe is 'dangerous abuse of power' MORE said he’s hopeful the court will set some boundaries. 

“I’m actually cautiously optimistic that in the Whitford case the Supreme Court in, I guess the latter part of June, will say there ought to be some guardrails when it comes to partisan gerrymandering,” he said. 

In a call with reporters Friday, Kimberly, who will argue on behalf of the challengers in court on Wednesday, said the Maryland case differs from the Wisconsin case in that it alleges a violation of a voter’s individual rights, rather than a broader offense to statewide fairness. 

“Our case presents a clear First Amendment challenge,” he said. “The theory builds off the court’s First Amendment retaliation framework and the general thrust of that framework is that lawmakers and government decisions makers cannot single individuals out for disfavored treatment on the basis of their past protected conduct.”

The case highlights an uncomfortable history for Democrats who back redistricting reform efforts. Republicans have engaged in gerrymandering practices in recent years in part because they have had the opportunity to do so — the GOP controls the governorships and state legislatures in about half the states, after wave elections in the 2010 and 2014 midterms. But in the past, when Democrats controlled many more states, they were the ones drawing creative maps that benefited their incumbents. 

“The reason Republicans engaged in more gerrymandering than Democrats is because Republicans control more state legislatures than Democrats,” said Rick Hasen, a political law expert at the University of California-Irvine.

“Democrats have a long history of engaging in gerrymandering, and despite the fact that many Democrats have embraced the reform side on redistricting, much of that is situational.” 

Democrats have been vocal about cases of Republican-led gerrymandering in states like Pennsylvania, where the state Supreme Court last month struck down a GOP-drawn map and replaced it with district lines likely to be much more favorable to Democrats.

But the party has been quieter about Maryland, where Democrats so openly tinkered with lines in order to give themselves an advantage. 

Holder, who heads the National Democratic Redistricting Committee, acknowledged last week that his party had engaged in creative mapmaking as well.

“To the extent that there are examples of Democratic gerrymandering, yeah, all I want is a fair fight. And to the extent that we have been unfair in certain places, that’s fine. Let’s just make this a fair one,” Holder said. “If that means that reforms have to happen in Illinois, in Maryland, that’s fine. I’m OK with it.” 

Alexander Williams, a retired U.S. District Court judge who serves as a co-chairman of Maryland Gov. Larry Hogan’s (R) commission tasked with recommending new redistricting procedures, said he hopes the high court will implement standards for partisan gerrymandering that can be used in other states as well. 

Federal courts have also heard challenges to legislative or congressional district lines in Texas, North Carolina and Virginia in recent years.

“Let’s hope that whatever the decision the court makes, it has national implications,” Williams said.