The Supreme Court could make history by erecting a constitutional barrier to electoral maps that put party over country.
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On Tuesday, the Supreme Court once again took up the issue of partisan gerrymandering, hearing two cases that could allow the justices to put an end to the practice of drawing legislative maps for no other reason than to give an electoral edge to the party doing the drawing. Or as Justice Ruth Bader Ginsburg has described it, “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”
Voting rights advocates fear that an emboldened conservative majority on the court may not be open to policing politically motivated gerrymandering, in turn barring federal judges from considering future lawsuits.
One of the cases before the Supreme Court this week comes from North Carolina, where Republicans won barely 50 percent of the vote in the 2018 midterms but took nine of 13 congressional seats. (That count does not include the Ninth Congressional District, which remains contested as a result of rampant election fraud.) In a lengthy ruling addressing these disparities, which arose from a map drawn in 2016, a panel of federal judges in August said that the state’s Republican-controlled General Assembly violated the Constitution by drawing districts to give Republicans a partisan advantage.
The other case is from Maryland, where a different panel of judges ruled that the Sixth Congressional District was unconstitutionally drawn because Democrats “specifically targeted voters … who were registered as Republicans and who had historically voted for Republican candidates.” The judges found that Republican voters’ rights were violated because the gerrymander effectively moved about 30 percent of them out of the district, which for nearly two decades had been represented by a Republican congressman, and replaced them with Democratic voters.
In both cases — Rucho v. Common Cause and Lamone v. Benisek — lawmakers were clear about their intentions and set out explicitly to one-up the other party.
In deciding these disputes, the justices could send a clear and important message against the practice of legislators drawing district boundaries in a way that increases their party’s re-election chances — by moving voters for the other side in and out of districts and diminishing the value of their votes.
The Supreme Court showed signs on Tuesday that it may be willing to do just that. Surprising many court-watchers, Justice Brett Kavanaugh acknowledged the challengers’ claims. “Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.”
In the face of politically motivated redistricting, citizens have sought solutions through state courts, ballot initiatives and Congress. For instance, H.R. 1, which the House approved this month, contains a provision requiring states to create independent redistricting commissions. Justice Neil Gorsuch on Tuesday pointed to some of this activity to suggest that the Supreme Court need not intervene in this area.
Piggybacking on that theme, Justice Stephen Breyer echoed the age-old worry that judges aren’t equipped to handle dicey political disputes. “There is a great concern that unless you have a very clear standard,” he said, “you will turn many, many elections in the United States over to the judges.”
But as Justice Elena Kagan wrote last year when the Supreme Court punted on the question of partisan gerrymandering, “the need for judicial review is at its most urgent in these cases,” because “politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.”
Could Justice Kagan persuade a majority of her colleagues to finally put an end to extreme gerrymandering? That will become clear before the end of June. If she does, it will be a welcome and long-overdue outcome.
More on partisan gerrymandering.