The Supreme Court did not appear ready to put constraints on partisan gerrymandering after oral arguments in two cases Tuesday, as conservative justices aired concerns about how judges would decide when politics weighed too heavily in drawing congressional maps.
Justice Samuel A. Alito Jr. and other justices who make up the conservative majority of the court repeatedly voiced concerns about what standard the Supreme Court could establish to guide state legislatures when carving up their state into federal districts.
Those justices questioned whether voters in the cases — one from North Carolina and one from Maryland — were really asking the court to find that the Constitution requires something like proportional representation, where the congressional delegation more closely matched the statewide vote outcome.
Alito pressed hardest in the North Carolina case, where state Republican lawmakers required that map to entrench a 10-3 advantage for their party despite a majority of voters statewide voting for Democratic candidates.
Computers can generate hundreds or thousands of congressional maps that were otherwise neutral except that some baked in more of an advantage for one party or the other, Alito said, such as 10-2 for Republicans or 10-2 for Democrats.
“So which one do you have to choose? Nine to three for Republicans? Eight to four? Six to six?” Alito said. “Would anything other than random choice be sufficient?”
And Justice Neil M. Gorsuch questioned whether the court needed to get involved at all, since voters in several states had acted to rein in partisan gerrymandering and Congress was pursuing legislation.
“My sense is there’s a lot of movement in this area,” Gorsuch said, citing ballot measures in his home state of Colorado and several other states in the past election.
Paul Clement, an attorney representing the North Carolina lawmakers, said Congress “is the most obvious” place for a solution.
“If you look at HR 1, the very first bill that the new Congress put on their agenda, it was an effort to essentially force states to have bipartisan commissions,” Clement said. “Now query whether that’s constitutional, but it certainly shows that Congress is able to take action in this particular area.”
That prompted Chief Justice John G. Roberts Jr., to quip: “Well, I suppose the members of Congress are pretty happy with the way the redistricting has been done.”
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Justice Brett M. Kavanaugh, the newest member of the court and one who has not expressed views on the issue previously, voiced concerns about proportional representation but also asked if the nation has “really reached a moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?”
Some legal experts read Tuesday’s comments from Roberts and Kavanaugh as signs they are potentially open to finding a way to restrict the most extreme partisan gerrymanders, but are still mulling how that could be done.
The Supreme Court grappled with the issue last term before ultimately punting it back to lower courts without deciding the main issue, which brings the two cases before the court again. In the Maryland case, state officials redrew the map to increase the Democratic advantage in the congressional delegation from 6-2 to 7-1.
Questions from the four justices on the liberal wing of the court, which last year signed on to a concurring opinion urging the court to stop partisan gerrymandering, suggested they hold that view again this year.
Lawyers from both sides warned the justices Tuesday that their decision — one way or the other — would be seen as political.
Clement told the justices that if they get into the business of judging when state legislatures used too much politics in drawing maps, they will step into the inherently political redistricting process to pick winners and losers in elections. “Once you get into the political thicket you will not get out,” Clement said.
But Allison Riggs, an attorney arguing on behalf of the League of Women Voters of North Carolina, said there was risk in doing nothing to deter lawmakers such as Republicans in North Carolina who said the only reason they drew a map with a 10-3 advantage is because it wasn’t possible to draw a map with an 11-2 advantage.
“The reputational risk of doing something is much, much less than the reputational risk of doing nothing, which will be read as a green light for this kind of discriminatory rhetoric and manipulation from here on out,” Riggs said.
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.