Supreme Court Uncertain on Gerrymandering

“What the Maryland legislature did was to shuffle 360,000 people out and bring in 350,000 people”, the left-leaning Justice Elena Kagan said Wednesday as the court began hearing the case. Longtime Republican Congressman Roscoe Bartlett also his seat in the first election under the new map. But they are holding that case pending decisions in the other two. That’s because they could set precedents that states must follow during the next round of redistricting after the 2020 Census.

The Supreme Court heard arguments last October on a Wisconsin case that was considered a first test of the current bench’s stance. Breyer noted that the court has before it the Maryland and Wisconsin cases and a case in the wings from North Carolina.

In 2016 a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment.

Partisan breakdown: U.S. House — seven Democrats, one Republican.

The report projects that Democrats would need to win the national popular vote for congressional districts by a almost 11 percentage point margin over Republicans to gain more than the roughly two dozen seats they need to flip control of the Republican-led chamber.

Voting: Supreme Court conundrum: Should the right to vote depend on what you wear? The lower court put the case on hold pending guidance from the Supreme Court. State Senate — 20 Republicans, 11 Democrats.

Breyer proposed a solution: The court should hold reargument not only in the Maryland and Wisconsin partisan-gerrymandering cases, but also in the North Carolina partisan-gerrymandering case that is now on hold for the first two cases. Those maps were permanently adopted by the Legislature and governor in 2013.

But Persily’s bill is just the start: Lawyers for voters behind the successful, gerrymandering suit want an additional $1.5 million from state taxpayers for their three years of effort in the case. As Justice Samuel Alito stressed to Kimberly, the Supreme Court has recognized that redistricting is an inherently partisan process, and that a desire to give the party in power an advantage is not, standing alone, problematic. It favors Democrats rather than Republicans, focuses on a single district rather than statewide, and alleges that lawmakers retaliated against voters due to their support for the GOP.

The new boundaries were said to resemble a salamander, giving way to the second part of the term.

Constituency maps for state and federal elections are usually redesigned following the US Census, carried out once per decade.

If O’Malley’s words sound like a confession, claiming partisan gerrymandering for years has actually been a defense.

In its most recent gerrymandering decision, a 2004 case called Vieth v. Jubelirer, five justices – including Justice Anthony Kennedy – said they believe courts should police extreme partisan gerrymanders that marginalize wide swaths of voters. Questioning Steven Sullivan, Maryland’s solicitor general, Kennedy said, “Suppose the Maryland constitution had a provision that required that partisan advantage for one party be the predominant consideration in any districting”. It redrew congressional district lines with the avowed goal of flipping a traditionally Republican district into Democratic hands.

Without question, this case and the earlier Wisconsin matter are under close judicial watch by many, given the court’s history of refraining from injecting itself into the political nature of redistricting, effectively taking a “To the victor goes the spoils” approach. That case is still pending.

But we should be careful, I think, about overstating the extent that gerrymandering is responsible for macro-level outcomes like control of the U.S. House of Representatives.

“Our position is that the burden properly understood under the First Amendment and applied in this context is the same burden that this court has recognized in the ballot access cases”, Kimberly said.

Michael Kimberly, who argued Wednesday on behalf of Maryland voters who brought the case, told the justices that the map specifically meant to dilute the votes of Republicans in the northwest section of the state. “If “max-black” was no good, why should ‘max-Democratic” be okay?”

The challengers say Democrats diluted the votes of Republicans in that district, moving them to another district that had a safe margin for Democrats. Republicans have controlled the state legislative and congressional delegations since then. That’s despite the fact that Pennsylvania has about 900,000 more registered Democrats than registered Republicans.

Easier was to put numerous Republicans in the old 6th District into the overwhelmingly Democratic 8th District.

The justices have a third partisan gerrymander challenge in the wings-from North Carolina.