For decades, advocates and attorneys have begged the Supreme Court to finally rule on partisan gerrymandering. But while the court has occasionally indicated that there could be a gerrymander so extreme it fails to pass constitutional muster, the justices have so far declined to weigh in decisively on the issue.
That will change this March, when the Supreme Court will finally hear two cases involving notable partisan gerrymandering schemes – one from North Carolina and one from Maryland.
However, some legal analysts warn this might turn out to be a classic case of “be careful what you wish for – you just might get it.” With a strong conservative majority on the Supreme Court, the justices could well issue a ruling that enshrines even extreme partisan gerrymandering for decades to come.
North Carolina and Maryland: Different States, Different Parties, Similar Gerrymandering Schemes
The court will hear two partisan gerrymandering cases at oral arguments on March 26.
The first, Lamone v. Benisek, involves a re-districting plan in Maryland, a state largely dominated by Democrats. Specifically, voters in the state are challenging a single congressional district whose boundaries the Democratic legislature re-drew following the 2010 census. The plaintiffs allege that the legislature unnecessarily removed tens of thousands of Republican voters from the district and replaced them with tens of thousands of Democrats, resulting in the GOP incumbent losing his re-election fight in 2012. The voters argue this represented an illegal retaliation for their political views.
The Maryland case already has a tangled legal history. It has come before the Supreme Court before, only for the justices to send it back to the district court. That court ruled in favor of the plaintiffs in 2018, ordering the legislature to draw a new map for the 2020 election. Maryland appealed the ruling to the Supreme Court, which agreed to take up the case.
The other case to be argued before the justices on March 26 is Rucho v. Common Cause, a challenge to North Carolina’s district map. Specifically, the second map North Carolina’s Republican-dominated legislature has had to draw since 2010, as a federal court struck down the state’s first attempt at a post-2010 re-districting.
In January 2018, a federal district court struck down North Carolina’s new map, ruling it was an unconstitutional partisan gerrymander. In 2016, Republicans won 10 of the state’s 13 congressional seats even though the statewide vote was nearly tied, which plaintiffs allege constituted “the worst partisan asymmetry” in the country that year.
After an appeal by the state and an initial decision by the Supreme Court to send the matter back to the lower courts, the district court again invalidated the map and said North Carolina could not use it after the 2018 election. North Carolina appealed that ruling to the Supreme Court, which decided to pair it with the Maryland case for arguments on March 26.
The Issues Involved
The Court has long been reluctant to weigh in decisively on partisan gerrymandering, fearing that to do so would entangle it in impossible political questions. However, it has never fully ruled out the possibility of striking down a legislature’s map due to extreme partisan gerrymandering.
The two cases the court will hear involve a number of specific issues. In Rucho, for example, North Carolina argues that the plaintiffs lack standing to challenge the map, saying that they have not suffered the specific injury necessary to justify a lawsuit. In addition, North Carolina’s attorneys say that partisan gerrymandering is not a justiciable issue and there is no possible workable standard for determining when a partisan gerrymander crosses a legal line.
In Lamone, Maryland argues that the district court’s ruling against their map fails to adequately grapple with the question of when a gerrymander goes too far. The ruling, Maryland says, would prevent any consideration of party affiliation in re-districting decisions, while the Supreme Court has already said that it’s legitimate for legislatures to weigh voters’ partisan allegiances when drawing maps.
Questionable Prospects For Reform
Analysts expect the cases to come down to the newest justice, Brett Kavanaugh. The four other conservatives on the bench have been consistent in arguing that the Supreme Court should not weigh in on partisan gerrymandering, with Chief Justice John Roberts particularly opposed to such cases. It’s generally expected that the four justices appointed by Democratic presidents are willing to strike down extreme partisan gerrymanders.
That’s not a particularly encouraging prospect for opponents of partisan gerrymandering, as Justice Kavanaugh has a long history as a reliable right-wing jurist. Still, Justice Kavanaugh has not yet ruled on the issue of partisan gerrymandering during his career, providing advocates with a glimmer of hope.
The stakes in the two cases are high. If the court takes the big step of finally drawing a bright line and establishing a clear standard for partisan gerrymandering, voters across the country would have ammunition to finally challenge unfair district maps. However, if the conservative majority rules that partisan gerrymandering is not a justiciable issue, it will essentially guarantee that voters have no ability to challenge these maps, no matter how extreme the partisan gerrymandering.