The Supreme Court has agreed to revisit two cases that could revolutionize how electoral maps are drawn.
The cases concern how far states can go in drawing district lines for partisan gain. The justices have never established a standard to resolve extreme partisan gerrymanders, and on Friday, they announced they will hear two cases on the issue, from North Carolina and Maryland. Arguments will be heard in March.
The justices have long said that some partisan gerrymandering may be so extreme that it violates constitutional rights, but they have never been able to develop a standard for such cases.
The issue of extreme partisan gerrymandering is highly divisive. Conservatives, like Chief Justice John Roberts, have suggested the courts steer clear of such political disputes altogether, while liberals, like Justice Elena Kagan, contend that courts should be able to articulate a standard to combat a practice that they believe enables politicians to entrench themselves in power against the will of the people.
“Just last year, the justices refused to step into the middle of the debate over partisan gerrymandering, finding ways to avoid ruling on the merits of a pair of cases arising out of Wisconsin and Maryland,” said Steve Vladeck, a CNN Supreme Court analyst who’s a professor at the University of Texas School of Law. “The question is whether anything has changed such that we should expect something different in the two new cases the court is going to hear in March.”
Although he never settled on a standard, retired Justice Anthony Kennedy was long considered the swing vote on the issue.
Now with Justice Brett Kavanaugh on the bench, his vote could determine whether the court hears more cases like this. If Kavanaugh rules in line with his conservative colleagues, it could foreclose future challenges on the issue.
“Given how the justices appeared to line up in last term’s cases, that may well depend upon Justice Kavanaugh — who did not have to deal with the issue during his tenure on the D.C. Circuit,” Vladek said. “But we shouldn’t read too much into the fact that the court is going to hear these cases in the first place; this is one of the few categories of cases in which the justices must hear appeals from the lower courts.”
The justices will review opinions from two different lower courts.
Rucho v. Common Cause
One case is brought by voting rights groups and voters who argue that North Carolina’s 2016 congressional district maps were unconstitutional. In Rucho v. Common Cause, they say the map drawn by Republican legislators amounts to an unconstitutional partisan gerrymander that intentionally diluted the electoral strength of individuals who oppose Republicans.
They also say the maps illegally punished supporters of non-Republican candidates on the basis of their political beliefs in violation of the First Amendment.
A lower court ruled in favor of the challengers, holding that the North Carolina voters had the legal right to bring claims and that the plan violated the Constitution.
Paul Clement, a lawyer for North Carolina’s Senate Redistricting Committee, argued in briefs before the Supreme Court that the lower court was wrong when it identified a test to strike down the map as unconstitutional.
In court briefs, he said courts cannot create workable tests for “separating excessive partisan gerrymandering from the run-of-the-mill consideration of partisan advantage by legislatures organized along party lines.”
“As decades of fruitless efforts have proven, trying to identify ‘judicially discernible and manageable standards’ for adjudicating generalized political grievances is an exercise in futility,” he wrote.
Lamone v. Benisek
The other case, Lamone v. Benisek, arises from Maryland.
This case is brought by Republican voters, who say Democratic state officials targeted them in 2011 and moved to dilute their vote in violation of the First Amendment.
In court briefs, Michael Kimberly, a lawyer for the plaintiffs urged the court to step in.
“If this Court does not take the opportunity, once and for all, to condemn political gerrymandering as the First Amendment violation that it is, it will be giving a green light to lawmakers across the country to engage in gerrymandering in 2020 like never before,” he said in court briefs.