WASHINGTON – For the second time in as many years, the Supreme Court heard arguments on partisan redistricting cases from Maryland and North Carolina Tuesday, but it remains unclear whether a constitutional standard for regulating the practice will be issued.
North Carolina’s entire congressional map is being contested, which is currently made up of 10 Republicans and three Democrats despite the state being almost evenly split politically.
At issue in Maryland is the state’s 6th Congressional District. Democratic lawmakers are accused of moving Republican voters out of the district that covers most of the state’s rural Northwest and putting in large numbers of Democratic voters from the Washington suburbs in order to turn the district blue.
The justices seemed to be split evenly down philosophical lines, with the more liberal wing of the court encouraging the deliberation of a manageable standard to apply to future questions of gerrymandering, while the conservative wing seeming wary of intervening in a process left largely to the states.
The question, said Chief Justice John Roberts, is whether “any partisanship that has a consequence is impermissible.”
The conservative justices pointed out dozens of times that the Constitution does not require proportional representation — the idea that the percentage of seats awarded to any party should correspond with the percentage of votes it won in the states.
Michael A. Kimberly, attorney for the voters challenging Maryland’s 6th District, said that proportional consideration should be considered when debating a possible constitutional standard. He argued that “it is a legitimate state interest to pursue proportional representation in redistricting.”
Justice Samuel Alito wondered whether “the First Amendment might require or even tolerate the regulation of speech, and in this instance, the speech is the votes, for the purpose of providing a proportional representation of viewpoints.”
The justices repeatedly asked counsel for the appellees for a test that would appropriately determine which cases of gerrymandering were so extremely partisan that they crossed a constitutional line.
The conservative justices, however, did not seem to find a suitable measure that could determine when an innately political process became too political.
“Is another way…of putting the test: I know it when I see it?” Justice Neil Gorsuch asked derisively.
The court’s liberal justices pushed back, saying the problem of extreme partisan gerrymandering had gotten out of control and seemed willing to conceive of some sort of regulatory measure.
Justice Elena Kagan characterized “the court leaving this all to professional politicians who have an interest in redistricting according to their own partisan interests” as “dramatically wrong.”
Another concern expressed by the conservative justices was the possibility that the judicial branch would essentially become the arbiter of elections should the court get involved in setting a standard for redistricting.
The gerrymandering of Maryland’s 6th District, which was at issue in Lamone v. Benisek, was unique in that the map in question had been put to a referendum and was approved by 64 percent of voters.
Gorsuch still seemed hesitant to judicially intervene.
“So, in effect, you are asking the court, no matter how good the referendum might be, no matter how much the people themselves might approve these lines, this court has to tell them it — it’s unconstitutional?” Gorsuch asked counsel for the appellees.
Justice Stephen Breyer proposed a standard that would only catch the “extreme outliers,” so that not every single election would be judicially contested.
“What I’m trying to do is to figure out if there’s a way to catch real outliers,” he said, so that it would not “lead to every election contested and throw it all to the judges instead of the people.“
Breyer said he considers a scenario where a party wins a majority of the statewide vote but the minority party wins two-thirds of the state’s congressional seats to be “pretty extreme.”
Breyer thus proposed a mathematical standard whereby congressional election results would be re-examined if one party won a majority of the statewide vote but one-third or less of the congressional seats.
Steven M. Sullivan, the solicitor general of Maryland and representative of the appellant, seemed doubtful that a formula that would only catch extreme outliers for review is unrealistic.
“If you’re concerned about limiting the Court’s intervention to the extreme circumstance,” he said, “you would not be limiting it to extreme. You would be saying ‘get ready, Arkansas, Kansas, Massachusetts, Oklahoma, Alabama, Kentucky, Tennessee.’”
The court is expected to issue a decision on whether to keep the drawing of congressional district maps in the hands of the states by July.