Supreme Court Struggles With Partisan-Gerrymandering Suits

(Bloomberg) -- The U.S. Supreme Court took its second look this term at calls for limits on excessively partisan voting maps, and the likely outcome is as hazy as ever.

In an hour-long argument Wednesday, the justices expressed broad concerns about a Maryland congressional district that Democrats acknowledge was drawn to oust a GOP lawmaker. But the session also made clear that the justices were a long way from resolving more far-reaching questions about partisan gerrymandering, including those raised in a Wisconsin case argued in October.

Justice Stephen Breyer even raised the possibility of revisiting the Maryland and Wisconsin cases next term, alongside a third gerrymandering fight from North Carolina.

"I do see an advantage," he said. "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."

The cases eventually could create a watershed moment for legislative redistricting. The Supreme Court has never struck down a voting map as being so partisan it violates the Constitution, though the court has long limited gerrymandering based on race.

Critics say politically gerrymandered districts undermine democracy, leaving voters with little influence over who represents them. Map defenders say courts would be embroiling themselves in an impossible task by trying to determine when partisanship has gone too far.

Kennedy’s Swing Vote

Breyer’s suggestion about a new argument doubled as an intriguing hint about Justice Anthony Kennedy, the 81-year-old likely swing vote. Kennedy has been at the center of retirement speculation for the last year, and his departure from the court would make the challenge much greater for opponents of gerrymandering.

Kennedy asked questions of both sides during Wednesday’s argument. He repeated a line of questions from the Wisconsin case, asking the Maryland lawyer defending the map whether a state constitution could explicitly require that voting maps favor a particular party.

When Maryland Solicitor General Steven Sullivan said no, Kennedy said he didn’t understand why the answer wasn’t the same for an explicitly partisan redistricting plan.

"How is this case different?" Kennedy asked.

Chief Justice John Roberts suggested he agreed. "The redistricting is a statute, isn’t it?" he asked. "Well, that seems to be a statute that prefers one party over another."

Former GOP Stronghold

The Maryland fight centers on the 6th District, a longstanding Republican stronghold until it was redrawn in 2011 to be more heavily Democratic. Democrat John Delaney now represents the district, which extends from the westernmost part of the state into the more liberal Washington suburbs. Democrats now hold seven of the eight congressional seats in Maryland.

Justices Sonia Sotomayor and Elena Kagan said Democratic lawmakers, including then-Governor Martin O’Malley, had been explicit about the partisan goals behind the new lines.

"People were very upfront about what they were trying to do here, which was to create another Democratic district," Kagan said. "How much more evidence of partisan intent could we need?"

Wisconsin Case

The argument strongly suggested the justices hadn’t resolved the Wisconsin case, argued during the first week of the court’s term. In that case, the justices considered a Democratic challenge to a Republican-drawn state legislative map.

After the Wisconsin arguments, gerrymandering opponents had hoped the court would rule in time to affect this year’s elections. The court instead said it would hear the Maryland case as well, adding months to the fight.

Those calendar realities could pose a procedural problem for the Republicans challenging the 6th District lines. Justice Ruth Bader Ginsburg said it was "much too late" to alter the map for this year’s election, and Kennedy seemed to endorse that view.

Single District

That could be important because the appeal turns on a Republican request for a preliminary injunction, and not a final ruling on the merits. Some justices suggested the court could stop short of reaching the merits and instead simply say that immediate intervention isn’t warranted.

The Maryland dispute involves a single district rather than the statewide map in the Wisconsin case. In cases of racial gerrymandering, the Supreme Court has said claims should generally be resolved on a district-by-district basis.

Maryland voters who challenged the district say it violated their First Amendment rights, diluting their votes in a targeted way to retaliate for their past support for Republican candidates.

Kennedy was among those who questioned whether that was the right way to look at partisan gerrymanders. He asked whether the retaliation test would preclude a legislature from redrawing voting lines to account for a population shift that reduced support for a hypothetical orange party.

"It seems to me that that would be definitely to retaliate against a certain voter, the voter for the orange party who used to be in the majority is now in the minority," Kennedy said. "He’s got a complaint under your view?"

The challengers in the Wisconsin case are pressing a somewhat different legal theory, arguing that the gerrymandered map unconstitutionally gives Republicans a virtually unbreakable hold on the state Assembly. They say the map violates both the First Amendment and the Constitution’s equal protection clause.

It was those dueling approaches that seemed to vex Breyer and led him to contemplate a new round of arguments.

"It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering," Breyer said. "But is there a practical remedy that won’t get judges involved in every -- or dozens and dozens and dozens of -- very important political decisions?"

Justice Samuel Alito indicated he was skeptical. "Hasn’t this court said time and again you can’t take all consideration of partisan advantage out of districting?" he asked.

The Maryland case is Benisek v. Lamone, 17-333. The Wisconsin case is Gill v. Whitford, 16-1161.

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