The Supreme Court hears oral arguments Tuesday in two partisan gerrymandering cases that could scramble congressional districts and change the way states redraw maps after the 2020 Census, marking the second consecutive year the justices will consider the issue.
In a sign of how much could change if the justices decide states can’t use the maps to entrench an advantage for a political party, the North Carolina and Maryland lawmakers who benefited from that process urged the Supreme Court to stay out of it and leave any overhaul of the redistricting process to Congress.
The nine Republican members of the Tar Heel State’s delegation — elected under a congressional map that state GOP officials said was drawn with the intent to keep a 10-3 advantage for their party — filed a brief at the high court arguing that state and federal lawmakers should rein in just that kind of line-drawing. What appeared to be a Republican win last year in the 9th District remains undecided because of allegations of election fraud.
To back up their point, they highlight scores of recent bills on partisan gerrymandering, including House Democrats’ signature HR 1 legislation that would require states to create independent redistricting commissions, among other overhauls. That’s not to say they support it; all of them voted against that bill in a House vote earlier this month.
“This vigorous legislative debate, over a wide array of redistricting proposals, belies any claim that Congress and the States lack the practical ability and the initiative to remedy any problems in this sensitive area of policy-making,” the North Carolina Republicans wrote.
And Democratic Rep. David Trone, who represents Maryland’s 6th District — which state officials redrew, increasing the Democratic advantage in the congressional delegation from 6-2 to 7-1 — said the politically preferable check on excessively partisan congressional maps is nationwide legislation. He is a co-sponsor of a House bill to do so.
“That bill, if it passes, would have a political legitimacy that cannot and should not come from this Court, which can only mire itself in partisanship by constitutionalizing standards for partisan gerrymandering and then refereeing the innumerable challenges that will ensue,” Trone wrote in a brief to the justices.
That argument could strike a chord with the Supreme Court, and particularly Chief Justice John G. Roberts Jr., who expressed during oral arguments last term his concern about the Supreme Court stepping into the inherently political redistricting process to pick winners and losers in elections.
But the challengers say the way both states drew maps with the express policy to benefit one party gives the Supreme Court a path to allowing such lawsuits. The oral arguments Tuesday will give the first insights into the justices’ thinking on the issue now.
The two cases provide the justices with stark examples of how partisan gerrymandering can affect the rights of voters to choose their representative, but also how it can be utilized by whichever party is in power.
Last term, the justices ultimately sidestepped the central question of whether the nation’s voters can challenge as unconstitutional any legislative maps states draw that entrench a benefit to one political party to the detriment of another. It hasn’t allowed those lawsuits, but it hasn’t shut the door, either.
The four justices on the court’s liberal wing appear ready to step in. This year, Justice Brett M. Kavanaugh will be on the bench because Justice Anthony M. Kennedy left the court, and his views on the issue are a bit of a mystery since he has never decided a partisan gerrymandering case.
In another brief on this year’s cases, 40 current and former members of Congress — evenly split, with 20 Republicans and 20 Democrats — told the justices that they have a crucial role to play “in fixing the problem.”
In a brief signed by Rep. Andy Harris, the only Maryland Republican, and 18 other current members of Congress, the group said the court could ultimately help lawmakers solve the problems of partisan gerrymandering.
“The cycles of extreme partisan gerrymandering are self-perpetuating, with partisanship and mistrust begetting still greater partisanship and mistrust,” the lawmakers wrote. “The modicum of judicial involvement required here — recognizing basic constitutional safeguards against the worst partisan gerrymanders — will allow the political process to begin to correct itself.”
The court will issue rulings by the conclusion of the term at the end of June. The cases are Rucho v. Common Cause and Lamone v. Benisek.