Court Battles

Supreme Court wades back into partisan gerrymandering

The Supreme Court is taking another crack at partisan gerrymandering on Tuesday.

The justices will take a fresh look at whether some politicians have gone too far and unconstitutionally manipulated voting district boundaries to keep one political party in power.

The court sidestepped the issue during its previous term, sending three cases back to lower courts for further review.

At the time, Justice Anthony Kennedy was on the bench. A lot has changed since then: Kennedy, known as the court's swing voter, was replaced by Justice Brett Kavanaugh, a reliable conservative.

The justices will hear two cases Tuesday - one dealing with North Carolina, with the other focusing on Maryland.

In North Carolina, Democratic voters argue that state GOP officials unconstitutionally ordered the drawing of new congressional districts to benefit Republican candidates.

In Maryland, GOP voters say Democratic officials split Republicans in the 6th Congressional District to eliminate one of two GOP seats from the state the party previously held in the House. GOP voters said that in redrawing the district, the Democratic officials retaliated against them for their past votes in violation of the First Amendment's ban on viewpoint discrimination.

Voting rights advocates say justices are in a tough spot this time around.

Nicholas Stephanopoulos, a lawyer for the North Carolina League of Women Voters, argues his client has already proven the required injury needed to file a lawsuit, a procedural step that can often send a case back to a lower court.

After that, he said, the justices have to look at whether the map constitutes an unconstitutional partisan gerrymander.

"There's no easy procedural out for the court," he said.

The North Carolina League of Women Voters challenged the state's congressional map in a now consolidated case with the government watchdog group Common Cause.

Conservatives agree that a decision is likely. And with the court's newest member, they are hopeful that the Supreme Court will rule that partisan redistricting is constitutional.

"You might think it's bad policy, and a state can pass a state law preventing it, but there's no basis for the idea that it violates the Constitution," said Hans von Spakovsky, a senior legal fellow and manager of the Election Law Reform Initiative at the Heritage Foundation.

Voters who brought the legal challenges disagree and have asked the Supreme Court to affirm the lower court rulings that struck down the state maps as unconstitutional partisan gerrymandering.

But to issue such a ruling, the court has expressed the need for a uniform standard so courts can determine when the use of politics is too extreme.

It's a dilemma that has long stumped the court.

In a column for SCOTUSblog last year, von Spakovsky called partisan gerrymandering the "political corollary" of the Goldilocks dilemma.

"You're always going to have some amount of partisanship in redistricting," he told The Hill this week. "At what point does it become too much and become a constitutional violation? There's no way to draw that line."

When the court first heard the Maryland case in the previous term, Justice Stephen Breyer suggested displaying all of the possibilities side by side in court.

"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," he said.

Kathay Feng, national redistricting director of Common Cause, said she thinks this is that blackboard moment.

The cases not only create the menu of options Justice Breyer had hoped for, Feng said, but the tests proposed also rely on a fact-intensive way to measure extreme partisan gerrymandering as opposed to a scientific algorithm.

The test offered by the North Carolina League of Women Voters would require the existence of a deliberate discriminatory intent, a discriminatory effect and no other legitimate justification for packing voters into a district or splitting them up so they no longer have a majority.

Stephanopoulos said the North Carolina group also thinks challengers should have to prove, in addition to the individual district, that the voting map as a whole is biased toward the party that drew it.

Common Cause argues that because a Republican partisan advantage was an express criteria that the North Carolina General Assembly adopted for redistricting, the map is an automatic unconstitutional partisan gerrymander.

"We certainly think this is the best test case for the Supreme Court to create a constitutional standard that says partisan gerrymandering does have limits," Feng said, calling the state's open partisanship brazen.

The redistricting criteria explicitly said the partisan makeup of the congressional delegation should be 10 Republican districts and three Democratic districts, according to court filings.

But North Carolina officials argue that voters have not shown the required injury. And even if they did, officials say, partisan gerrymandering claims aren't disputes that courts can consider.

If the justices rule otherwise, they warn, the court will be inundated with claims of partisan gerrymandering.

In the Maryland case, Republican voters propose a district specific test that's similar to the one offered by the North Carolina League of Women Voters, but they don't go as far as requiring a map-wide bias.

Maryland election officials argue the test "does not promise to be clear, manageable, politically neutral, reliably fair and precise" and that any consideration of politics in redistricting could get the map struck down as unconstitutional.

But they note a majority of justices in 2004 agreed that "some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent."

"Thus, only in the rare case will a court dismiss as not 'plausible' an allegation of partisan legislative intent in redistricting," the Maryland election officials wrote in one of their briefs.

Arguments in the Maryland and North Carolina cases will be heard on Tuesday. Decisions are expected by the end of June.

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