A familiar pattern emerged at the Supreme Court Tuesday as it again took up the subject of extreme partisan gerrymandering: Liberal justices saw it as a threat to democracy that requires action while conservatives wondered how courts could ever decide when a political process becomes too political.
The outcome could hinge on the justice who has not been a part of the previous considerations: Brett M. Kavanaugh. As is his custom in his rookie term, he asked questions and made comments that cheered (and worried) both sides.
At the end of more than two hours of arguments, it seemed Kavanaugh could become the fifth vote to finally say courts have no role in policing partisan gerrymandering, or he could be part of a narrow decision to rein in the most egregious offenders.
In the cases at hand, neither conservatives nor liberals seemed to have much doubt that Republicans in North Carolina had pushed through a congressional redistricting plan that would keep their lopsided majority in what has become a purple state; legislative leaders acknowledged as much.
Or that Democrats in Maryland had redrawn lines to eliminate one of the two districts (out of eight) where a Republican had a chance to win.
The governors of the two states — a Democrat in North Carolina and a Republican in Maryland — have taken the unusual step of saying their legislatures cannot be trusted with drawing electoral lines.
“This is not a fight between the right and the left, this is a fight between right and wrong,” Maryland Gov. Larry Hogan said outside the Supreme Court.
But conservative justices wondered how the judiciary should intervene in what is an inherently political process, and what standard would guide how to determine excess.
If technology has made thousands of potential maps available to state lawmakers who draw the districts, conservative Justice Samuel A. Alito Jr. asked, “How do you determine whether that choice is constitutional?”
Liberal Justice Stephen G. Breyer said the solution was to go after the outliers. He suggested a test — which didn’t seem to get much traction among his colleagues — that would raise constitutional concerns when a majority party in a state with near parity draws a map that would give it two-thirds of the seats.
That is similar to the North Carolina map before them.
The Supreme Court regularly scrutinizes electoral districts for racial gerrymandering, but the justices have never found that a state’s redistricting map was so skewed by partisanship that it violates a voter’s constitutional rights. Such a decision would mark a dramatic change for how the nation’s political maps are drawn.
The court passed up the chance last term to settle the issue. It sent back on technical grounds a Republican-drawn plan in Wisconsin and the challenged Maryland map.
Kavanaugh replaced Justice Anthony M. Kennedy, who suggested that some political gerrymandering could be so extreme that it was unconstitutional but had never settled on a test.
Kavanaugh wondered whether plans that differed dramatically from proportional representation might be suspect — North Carolina’s is 10 Republicans and three Democrats when Democrats had a wave in 2018. He was familiar with the lines drawn in Maryland, his home state.
Plaintiffs in both cases contend that “extreme partisan gerrymandering is a real problem for our democracy,” Kavanaugh said. “And I’m not going to dispute that.”
But he also said it was a “big lift” for courts to get involved, and noted — as did Justice Neal M. Gorsuch — that voters in states across the country are passing initiatives to take away power from legislators.
But lawyers for the plaintiffs and Justice Elena Kagan reminded them that the vast majority of states do not allow voters to take the lead. “People really can’t fix it,” she said during the argument on the North Carolina map, saying that it is what made it so “dramatically wrong here.”
When Alito and Chief Justice John G. Roberts Jr. worried about what kind of test judges could use to determine extreme partisanship, D.C. lawyer Paul D. Clement, representing North Carolina’s GOP legislative leaders, suggested the problem is that the framers put drawing electoral lines in the hands of the political branches and did not intend a role for the judiciary.
Liberal justices did not buy it. “That ship has sailed,” said Justice Sonia Sotomayor.
Justice Ruth Bader Ginsburg agreed, saying the court became involved decades ago when deciding districts had to be fairly apportioned.
“Does one person have one vote that counts equally with others if the impact of her vote is reduced based on her party affiliation?” she asked.
The Maryland case was not new to the justices. In June, they said it was not ready for them and sent it back. In November, a three-judge panel unanimously found that Democrats had unconstitutionally targeted Republican voters in the 6th Congressional District because of their past votes. The legislature had redrawn the district, which previously stretched across the top of the state, to dip down into Democratic strongholds in the Washington suburbs.
The Supreme Court had also sent back the North Carolina case last term, telling a special panel of three federal judges to decide whether challengers in that state had legal standing. The judges said they did and also found that the legislature’s efforts violated constitutional protections of equal protection.
The court noted the comments from a Republican legislative leader after a previous map was struck down as an example of racial gerrymandering that made clear politics was the motive behind the new map.
State Rep. David Lewis said: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
When voters went to the polls that fall, the 10-to-3 outcome was exactly as Lewis had predicted, even though Republican candidates won just 53 percent of the statewide vote. The trend continued in the fall’s elections, although Democrats actually received a majority of votes.
The North Carolina case is Rucho v. Common Cause. The Maryland case is Lamone v. Benisek.
Jennifer Barrios contributed to this report.