State officials in Maryland moved Thursday to take a new partisan gerrymandering case to the Supreme Court, and both sides in the case have agreed on a schedule that could get a final ruling by the end of the Justices’ current term. The Maryland case would add new issues to an already pending North Carolina case on that constitutional controversy, and both of the two cases are in a format that almost assures review by the Justices.
The Maryland case involves a Democratic-drawn map of a single congressional district, and the North Carolina case involves a Republican-drawn map of all of the state’s 13 congressional districts. Both maps were created in 2011, after the most recent federal census.
In last week’s elections, the results showed that the maps were still working to assure the partisan outcomes that were intended when the new districting plans were drawn. In Maryland, the Democratic candidate easily won the Sixth District seat that, before the 2011 plan, had routinely gone to a Republican. In North Carolina, the GOP won ten of the 13 seats, although the statewide votes in the congressional contests were nearly even; that has happened in each election since the 2011 map was crafted.
The North Carolina case will be slightly ahead of the Maryland case on the Court’s docket, but it seems quite likely that the Justices would want to hear both cases so that they are examining the underlying constitutional issue in cases with different partisan outcomes, thus perhaps avoiding the appearance of favoring one party’s political fortunes.
Since each case is reaching the court from a decision by special three-judge federal trial courts, review is practically guaranteed under current federal law spelling out the procedures for the Supreme Court’s handling of redistricting cases. Review is not automatic, but it is close to that, and the cases must be handled on an expedited basis.
At the center of each case is the basic constitutional question: Is partisan gerrymandering unconstitutional, under any formula that the Justices might devise? That kind of redistricting is done in a way that favors the candidates of one major party over the other party’s candidates, and it has been practiced by both major parties since the nation’s early years.
For more than three decades, the Court has been examining that issue but has yet to come up with a standard for judging when partisanship has gone too far in drawing up election district maps.
The Justices had a look at both the Maryland and North Carolina cases last term but returned both of them to the lower courts for a new review without answering the constitutional issue. The lower courts struck down the single district plan in Maryland and the statewide plan in North Carolina, although each state was allowed to use the maps in last week’s election.
Four Republican state legislators in North Carolina filed their appeal at the Court early last month and used it to make a sweeping plea to the Justices to bar all constitutional challenges based on claims of partisan gerrymandering. The time has come, that appeal argues, to end the prolonged search for a way to judge partisanship in a process that the legislators contend is always political in nature. No workable constitutional standard can be devised, the legislators’ appeal said.
In addition to that basic plea, the GOP appeal also asserts that none of the Democratic challengers had a right to file their lawsuit against the 2011 map. And, it adds, even if the Justices could devise a constitutional formula for assessing partisanship, the North Carolina map would satisfy it.
Maryland state officials started their case on the way toward the Supreme Court on Thursday, notifying the three-judge trial court in Baltimore that they will be filing the appeal with the Justices and will be asking that the case is heard and decided in the current term, likely to end late next June.
State officials said that they would need a decision by next June to be able to have time to draw up a new map in time for the 2020 election, should the Justices rule that the 2011 map is unconstitutional.
In the federal court’s ruling, issued one day after last week’s elections, it found the Sixth District map unconstitutional as a gerrymander tailored with the specific aim of switching the seat from its long-standing Republican majority among its voters to a new and solid Democratic majority.
The state asked that court to put its ruling on hold, to enable the state to go forward with its appeal to the Supreme Court. The new filing said that the cases will be raising issues under the First Amendment rights of voters that are not raised in the North Carolina appeal. Thus, the state document contended, the Supreme Court should have the opportunity to consider the dispute on a broader basis.
The Republican voters who successfully challenged the Sixth District map agreed to the plea to put the trial court ruling on hold, provided that the state adhered to the schedule that the two sides had accepted. That schedule, the two sides said, would enable the Justices to take on and decide the case in their current term.
Maryland would file its appeal by December 3, and both sides would complete filing the initial round of written briefs by December 18. Under that timetable, the Court would be able to accept the appeal and hold a hearing and decide it before the term ends in late June. If the state loses the appeal, its new filing said, it would promptly begin work on a new map for the Sixth District.
The first round of briefing of the North Carolina case is not yet complete, but may be shortly.
It would be up to the Justices to decide whether to move ahead with both cases or to choose just one and keep the other on hold until a decision emerged.
