Supreme Court justices found themselves in a familiar position Tuesday, deeply divided over whether to rule that politicians can go too far and unconstitutionally draw district boundaries that favor one party over another.
The justices heard two cases Tuesday — one from North Carolina, where Democrats argue GOP officials drew the state’s 2016 congressional district to favor Republicans, and a case out of Maryland, where Republican voters say Democratic officials redrew the state’s 6th Congressional district to eliminate one of two Republican seats in Congress.
Justice Neil Gorsuch asked about actions at the state level to resolve the issue, which led Justice Brettt Kavanaugh to suggest maybe the court’s intervention isn’t needed given state ballot initiatives to establish redistricting commissions, legislation in Congress and state Supreme Court rulings.
{mosads}“Have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?” he asked.
Paul Clement, who argued on behalf of the Republican officials in North Carolina, noted the first bill the House put on its agenda in the new Congress had a provision that would have essentially forced states to have bipartisan redistricting commissions.
“Now query whether that’s constitutional, but it certainly shows that Congress is able to take action in this particular area,” he said.
The court has repeatedly side-stepped the issue of partisan gerrymandering in the past, unable to come up with a uniform standard to measure when partisanship in redistricting has gone too far.
Former Justice Anthony Kennedy, who seemed to suggest that a standard could be established, retired last year but was still very much a part of Tuesday’s oral arguments.
{mossecondads}Justice Sonia Sotomayor said she was taking the court back to Kennedy’s question last term before asking if it would be constitutional for a state Constitution to have a provision that requires redistricting based solely on partisan grounds.
Justice Elena Kagan said the North Carolina case in a sense is “Kennedy’s hypothetical come to life.”
In North Carolina, the state’s general assembly adopted criteria for the redistricting process that explicitly told map drawers to maintain the current partisan makeup of the Congressional delegation, which was 10 Republicans and three Democrats.
Allison Riggs, who argued on behalf of the North Carolina League of Women Voters, which brought a challenge in addition to Common Cause, called the states 2016 map the most egregious example of partisan gerrymandering the court has seen.
The North Carolina League of Women Voters proposed a standard that would require a showing of deliberate discriminatory intent in drawing a district; a partisan effect in the district and across the map; and no legitimate justification for packing voters into a district or splitting them up.
Riggs said the map as a whole also has to have a severe and lasting impact on the party that’s adversely affected.
Michael Kimberly, who argued on behalf of the Republican voters fighting the map drawn by Democrats in Maryland, said his clients would be fine with a standard that looks at whether one party will be hurt by a partisan gerrymander for years.
“We would be perfectly comfortable with the court saying that the way that we know it’s too much is if it results in a durable partisan gerrymander that will resist changes in politics over the coming decade,” he said.
In striking down the map in Maryland, the lower court ruled that Democratic officials had drawn the 6th Congressional District with the intent to dilute Republican votes, a violation of the First Amendment.
But Maryland Solicitor General Steven Sullivan argued against using partisan intent as standard.
He noted the court has acknowledged in the past how easy it is to prove since “it’s the air politicians breathe.”
Justice Ruth Bader Ginsburg suggested that the legislature’s intent to eliminate a Republican in the House may have been extreme in this case.
“I mean, is there any genuine doubt that that was the aim from the beginning, to shrink Republican districts by one?” she asked.
In the North Carolina case, Clement warned the court against ruling that partisan gerrymandering can be unconstitutional. Doing so, he said, would open the door to a flood of legal challenges.
“And once you get into the political thicket, you will not get out and you will tarnish the image of this Court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politicism,” he said.
The argument seemed to be directed squarely at Chief Justice John Roberts, who is known for his efforts to maintain the integrity of the court and keep the public from viewing it as another political institution.
But Riggs said, “The reputational risk of doing something is much, much less than the reputational risk of doing nothing.”
Doing nothing, she said, “will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out.”
Decisions in the case are expected by the end of June.
Updated at 4:45 p.m.