Supreme Court reopens partisan gerrymander issue

Setting the stage for another attempt to decide the constitutionality of partisan-gerrymandered election districts, the Supreme Court on Friday agreed to hear new cases from North Carolina and Maryland. Both cases involve the district lines for electing members of the U.S. House of Representatives.

This type of gerrymandering, dating back to the early 1800s, results when a political party that controls a legislative body draws up election maps to favor that party’s candidates, giving them a greater chance to win than their rivals in the other party. Political observers from across the spectrum argue that the problem is deepening in modern times, with increasingly sophisticated population data allowing partisan favoritism that lasts, election after election.

The Court has been examining the constitutionality of this type of gerrymandering since 1986 but has yet to find a formula for judging when the practice takes partisanship too far, and just when such map-drawing may violate the rights of voters of the party that is disfavored by the maps.

With hearings now set in the two new cases for the Court’s public sitting in March, it appears likely that the decisions will emerge by the time the Justices finish the current term, perhaps in late June – in time to have an effect on the new redistricting process that will follow the 2020 census.

There is no guarantee, at this point, that the cases will result in a new constitutional standard.  In fact, the appeal filed with the Court in the North Carolina case, by four Republican leaders of that state’s legislature, urged the Justices to abandon altogether the search for such a standard, contending that one simply cannot be found.  The Maryland case, taken to the Court by state officials, does not go that far but does contend that a workable standard has not yet been found in that case.

In both cases, however, special three-judge federal trials did fashion formulas to address the challenges, and used those measures to strike down both state’s current map – for the entire state of North Carolina’s 13 seats in the U.S. House, and for a single district in the western part of Maryland – the only one of that state’s eight House districts under challenge.

The North Carolina map, in use in somewhat different forms since 2011, has regularly produced victories for GOP candidates in ten of the state’s 13 House districts, although statewide voting patterns are nearly even.  The Maryland map for the Sixth District, dating from 2011, ended years of repeated victories for the GOP candidate and now regularly leads to a Democratic victory.  The Maryland map was crafted by moving tens of thousands of Republicans into neighboring, Democratic-dominated districts while moving tens of thousands of Democrats into the Sixth District.

In federal trial courts, state leaders – Republicans in North Carolina, Democrats in Maryland – candidly conceded that they had set out specifically to give their party an advantage at the polls, all across North Carolina and in western Maryland.

By taking on both cases for review, the Supreme Court has before it what amounts to a bipartisan battle, with each party claiming to have its followers harmed as a result of the gerrymandering.  The Court, if it does rule against such partisan maneuvering, will have a better chance of avoiding criticism that it acted to favor one party over the other – a concern that Chief Justice John G. Roberts, Jr., raised the last time the Court studied this partisan phenomenon.

The problem that the Court has had throughout its three-decades-long pursuit of a constitutional formula is that it appreciates that the districting process is, by nature, a political one, so it is very difficult for judges to know when political preferences played too great a part.

Under the Constitution’s Article I, the Elections Clause assigns to state legislatures the task of drawing election districts for choosing members of the House, with back-up veto power for Congress.  The Constitution also requires that seating in the House be based on population data, as collected by the federal census every ten years. 

Because Americans tend to be quite mobile, population shifts are nearly inevitable and that will show up in each succeeding census. Congress uses the latest census data to determine how many of the House’s 435 seats each state gets, with every state assured of at least one no matter how small its state population.

That’s why North Carolina currently has 13 seats and Maryland eight.  Under preliminary data that anticipates the 2020 census, North Carolina could get a 14th seat while Maryland is likely to neither gain nor lose and thus could keep eight.

In both states, though, the legislature will have the task of drawing up new maps following the 2020 census, whether or not the state gains or loses House seats.

Throughout much of the Supreme Court’s history of examining partisan gerrymandering, the focus has been largely on claims that the practice violates the Constitution’s guarantee of voter equality, with the favored party’s voters having more success with their candidates than disfavored voters do.  More recently, the Court has confronted arguments that such gerrymandering violates the rights of the disfavored party’s voters by punishing them for their political views and preferences.

When the Justices examine the new cases, they will confront another constitutional argument they have not seen before: that partisan gerrymandering violates the Constitution’s Elections Clause because that provision does not permit state legislatures to take partisan considerations into account in drawing new House districts.

While the two cases will both be heard in March, they are being handled as separate cases, so each will have its own hearing – very likely, back-to-back on the same day.

In the two orders the Court issued on Friday afternoon, it noted that it will wait until the actual hearing to decide whether it has jurisdiction to hear and decide these cases.  The reason that this is a basic question is that, in each case, the opponents of the resulting maps have argued that those who challenged the district lines could not show that they had actually been injured, and thus did not have “standing” even to sue.   The Court has long taken the position that it has no authority to decide a case if there is no party with actual “standing to sue” because, otherwise, it would be deciding abstract legal questions – something the Constitution does not permit it to do. 

Another aspect of the postponed jurisdictional question is whether it is possible for the Court to work out a formula for judging the constitutionality of such gerrymanders.  If there is no formula that would be workable, the issue is said to be "non-justiciable" -- that is, a court can't decide it so it has no power to do so.

The North Carolina and Maryland cases, in earlier versions, were before the Court last term, but the Justices sent both of them back to lower courts for another review, after the Justices found in a separate case from Wisconsin that there were issues about “standing to sue,” so none of the cases was decided on its merits.

The Court has one new Justice since those actions last term: Justice Brett M. Kavanaugh.  He occupies the seat held for 30 years by now-retired Justice Anthony M. Kennedy, who almost single-handedly kept alive the entire partisan gerrymandering issue when other Justices were ready to abandon it as a lost cause.

The two new cases are expected to draw a sizeable pile of friend-of-court briefs, seeking to influence the court on both sides of the constitutional controversy.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.