Constitution Daily

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New partisan gerrymander case reaches Justices

December 3, 2018 by Lyle Denniston


Arguing that a state should not have to re-draw its congressional districts twice in a short time span, Maryland officials asked the Supreme Court on Monday to rule that the existing map can be used again in 2020 despite a lower court ruling that it is an unconstitutional partisan gerrymander.

A new map undoubtedly will have to be drawn up after the 2020 census, so the state should not have to craft another one in the meantime for only a single election, the state’s new filing said.

That plea highlighted a new appeal that focuses only on the specifics of the current district lines for just one of the state’s eight seats in the U.S. House of Representatives.  The appeal noticeably does not seek any broader ruling against partisan gerrymander challenges in general.  

Link: Read The Appeal

That makes the Maryland case significantly different from a sweeping appeal already at the Supreme Court in a North Carolina case, which seeks to forbid all claims of illegal partisanship in election districting.  The Court is currently scheduled to take up later this week the question of whether it will grant review this term of the North Carolina case.  The Maryland case is weeks behind on the Court’s docket, but that state’s officials still want it, too, to be decided during the current term, which probably will run until late June.

It is unclear whether the narrow scope of the Maryland case will make it more likely, or less likely, for the Justices to move quickly to decide that one, too.  It appears to be an easier case than the one from North Carolina, and it could be kept on hold until the Court makes up its mind in that other case whether to spell out a new constitutional formula for judging partisan gerrymanders’ legality – a pursuit that the Court has been making for more than three decades without success so far.

The Maryland case involves the Sixth District, located mostly in the western part of the state.  For decades, Republican candidates won there repeatedly under prior districting maps, but state Democratic leaders in 2011 created new lines that have resulted in a Democrat winning every time in the district, including as recently as last month.   The Democrats now have controlling political power in seven of the state’s eight House districts.

Although Maryland officials did not ask the Justices to bar all partisan gerrymander cases from here on, they did contend that the formulas applied by a three-judge trial court in their case were not workable as a means of deciding when partisanship went too far in the redistricting process.

The lower court had ruled against the lines for the state’s Sixth District based on two theories: first, that the map was drawn explicitly to dilute voting strength of Republicans living in the district in order to retaliate against them for their past voting patterns, and, second, that the lines were drawn in ways that make it less likely that Republicans will be able to band together in joint political efforts to enhance their party’s chances of winning the seat.

The lower court, the appeal contended, made it impossible for a state legislature to draw districting maps that reflect the comparative voting strength of the two major political parties in a state – a tactic that has won Supreme Court appeal in the past.  Under the new lower court ruling, any time a House district is flipped from favoring one party’s political fortunes to the other party’s, it will be ruled an invalid partisan move, the appeal said.

Democrats are clearly the dominant party in Maryland, although the state recently reelected its popular GOP governor, Larry Hogan.

Governor Hogan, since his reelection, has chosen not to wait to see how the Supreme Court case turns out.  He is assembling what he has described as a non-partisan congressional redistricting commission to draw a new map for the Sixth District that would satisfy the lower court’s decision.  But any map fashioned by that commission would have to be submitted to the state legislature for final approval, and Democrats clearly dominate the legislature.

Although the lower court struck down the existing lines for the Sixth District, it has put everything in the case on hold to await the outcome of the state’s appeal to the Justices.  The lower court, however, plans to restart the case toward a new map if the Justices do not rule on the state’s appeal by the end of next June.

The lower court would allow the state legislature to act first, but if it fails to do so, the court plans to set up its own bipartisan commission to work out a new map for the district.   It is not clear how that plan if it is pursued, would mesh with what the governor’s commission might do.

The state’s appeal, besides challenging the theories behind the lower court ruling against the partisanship of the 2011 plan, sharply criticized how the three-judge panel handled many of the issues about evidence in the case. It also argued that the challengers engaged in delaying tactics throughout the nearly six years that the challenging lawsuit has been underway in the courts, thus forfeiting their cause.   The Supreme Court has acted on various versions of the Maryland map three different times in recent years but has yet to rule in a final way on the 2011 map.
The GOP voters who challenged the 2011 map have agreed to file their formal response to the state’s new appeal by December 11, in order to help get the case in a position to be decided by the Justices in the current term.  The state will then quickly file a final reply, so the Justices could act on the case in January.

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


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