The Supreme Court has agreed to consider the constitutionality of partisan gerrymandering after punting the issue last term.
The justices on Friday added to their docket two cases — one out of Maryland and another out of North Carolina — challenging when too much politics in the redistricting process becomes unlawful.
{mosads}The justices, however, have long wrestled with how to measure when partisanship in the redistricting process has gone too far. The cases present a fresh opportunity for a state map to be struck down as an unconstitutional partisan gerrymander for the first time.
In the Maryland case, state Attorney General Brian Frosh (D) is appealing a district court ruling that requires the state to redraw its 2011 congressional redistricting plan before the 2020 election after a district court found state officials intentionally flipped control of the 6th Congressional District from Republicans to Democrats.
In the North Carolina case, Republican lawmakers are appealing a 2nd District Court ruling striking down the state’s 2016 congressional maps. The decision stemmed from a challenge brought by Common Cause and the League of Women Voters alleging the maps were drawn to give Republicans a partisan advantage.
The court said arguments will be set for March, which means a decision will likely come by the end of June. It takes four justices to agree to hear a case.
Last term, the court sidestepped the issue in the Maryland case and in a case out of Wisconsin. In the Wisconsin case, Democratic voters alleged Republican legislators had unfairly and strategically put them at a disadvantage. But in a narrow ruling, the justices said the voters lacked standing to challenge the state’s entire map and remanded the case back down to the lower court.
Not everyone is convinced that the justices will finally resolve the dispute.
Rick Hasen, a professor of law and political science at the University of California, Irvine, said retired Justice Anthony Kennedy wasn’t ready to join the four liberals and open the federal courts to start policing the issue. Hasen said it’s unclear how President Trump’s newest appointee, Justice Brett Kavanaugh, thinks about partisan gerrymandering.
“His general ideological orientation makes me very skeptical he’d vote to have courts enter this ‘political thicket,’ ” he said in a tweet on Thursday.
“It’s not impossible that Kavanaugh or even CJ [Chief Justice John] Roberts is willing to police partisan gerrymandering, but I wouldn’t bet on it,” he said in a subsequent tweet.
Voting rights advocates like the Southern Coalition for Social Justice say the cases have the potential to reshape future redistricting nationwide by limiting politicians’ ability to discriminate against voters who favor a minority party when those politicians draw electoral districts.
“Partisan gerrymandering in North Carolina has become so pervasive that the outcome of many elections is decided before a single vote is cast,” Janet Hoy, co-president of the League of Women Voters of North Carolina, said in a statement.
“We have full hope that the U.S. Supreme Court will rein in this undemocratic practice so that voters can have the fair elections they deserve and know that their vote matters.”
— Updated 4:31 p.m.