Supreme Court criticizes partisan election maps, but a fix proves elusive
WASHINGTON — Supreme Court justices signaled clearly Wednesday that they don’t like the way states are drawing one-sided election districts, but they did not appear ready to devise a solution.
After an hour’s debate over the maps drawn by Maryland’s state legislature to give Democrats seven of the state’s eight seats in Congress, it appeared the court was no closer to fixing the problem of extreme partisan gerrymandering.
Justice Stephen Breyer even went so far as to suggest that the court come back next term and hear cases from Maryland, Wisconsin and North Carolina together. The various proposals from challengers, he said, could be put on a blackboard for the justices to review.
“It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering,” Breyer said of the Maryland map drawn in 2011 to reduce “Republican seats in Congress from two to one. “But is there a practical remedy that won’t get judges involved in dozens and dozens and dozens of very important political decisions?”
The extraordinary effort by the court to tackle the way most state legislatures draw congressional and state legislative districts includes a Wisconsin case heard in October and a North Carolina case that’s been put on hold. The high court refused this month to intervene in Pennsylvania, where the state Supreme Court struck down congressional districts drawn by Republicans and imposed its own replacement for the 2018 election.
Across the nation, hundreds of members of Congress and thousands of state legislators are elected in districts drawn to favor the party that controls state government. That has largely favored Republicans during the past decade, as the justices heard in October when confronted by Wisconsin’s partisan artistry. But the court has never found partisan gerrymandering to be unconstitutional.
The Wisconsin map gave Republicans nearly two-thirds of the state Assembly seats in an otherwise politically balanced state. Challengers told the court that the GOP-drawn lines violated their constitutional rights to equal protection.
But rather than decide the case quickly, the justices opted to hear the Maryland case, which is different in several respects. It favors Democrats rather than Republicans, focuses on a single district rather than statewide, and alleges a free speech violation, rather than equal protection.
Maryland and Wisconsin are not alone in their political favoritism. A decision striking down one or both maps could threaten equally partisan state and federal district lines from Texas to Massachusetts.Â
With the clock ticking toward November, the justices said any decision in the Wisconsin and Maryland cases would apply only to the 2020 election cycle and beyond. For that reason, several justices said they could wait for a federal district court to conduct a full trial in the Maryland case.
Some conservative justices went further, suggesting there may be no standard the court could find for how much politics is too much. If the court set one based on the Maryland challengers’ First Amendment claim, Justice Samuel Alito said, “I really don’t see how any legislature will ever be able to redistrict.”
But the court’s liberal justices said Maryland Democrats clearly went too far when they redrew a congressional district won for two decades by a conservative Republican so that he would lose in a landslide in 2012.
“People were very upfront about what they were trying to do here,” Justice Elena Kagan said. “How much more evidence of partisan intent could we need?”
Justice Anthony Kennedy, the potential swing vote in all the gerrymandering cases, said the Maryland state constitution could not mandate that lawmakers favor one party over another. The state accomplished the same goal by enacting the new lines, he said.Â
Other justices worried that if they declared Maryland’s maps unconstitutional, states will find a way to draw them differently while still favoring the party in power.
“We’ll never have such a (court) record again,” Breyer said. “I mean, the people who do the gerrymandering are not stupid.”
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