POLITICS
03/28/2018 11:42 am ET Updated Mar 28, 2018

Maryland Democrats Went Too Far In Gerrymandering. The Supreme Court Appears Unsure What To Do About It.

The justices voiced skepticism about a novel legal theory that challenges partisan gerrymanders on First Amendment grounds.

WASHINGTON ― The Supreme Court seemed hesitant to move quickly to strike down a Maryland congressional district based on a novel legal theory that claims partisan gerrymandering can violate the First Amendment. 

Oral arguments for Benisek v. Lamone took place Wednesday in the case that centers around a challenge from Republican voters living in Maryland’s 6th Congressional District. They claim that Democrats intentionally discriminated against them in 2011 based on their support for GOP candidates when they redrew the state’s congressional map and flipped their reliably Republican district to a Democratic one.

A majority of the justices on the court appeared to believe that what Maryland Democrats did in 2011 was intentional and problematic. But the court has acknowledged that some partisanship in redistricting is acceptable ― it’s just never said how much is too much.

During oral arguments, the justices pressed Michael Kimberly, the lawyer representing the Republicans, on what kind of political consideration lawmakers could take into account when they were drawing districts.

Kimberly suggested that the state should have to show there was a compelling governmental interest when it took political beliefs into account for redistricting.

But the justices, including Ruth Bader Ginsburg and Elena Kagan, wanted to know under exactly which circumstances a state could use partisan affiliation when it drew new electoral districts. Justice Samuel Alito hinted that he believed the test suggested by Kimberly was too broad and wouldn’t leave any room for lawmakers to take partisan consideration into account at all.

Kimberly struggled to explain how lawmakers could justify intentionally taking partisan considerations into account when redistricting, saying that it would be acceptable if a certain number of voters from one party had to be moved as a consequence for redrawing other districts.

Steven Sullivan, the Maryland solicitor general, argued that the plaintiffs in the case had failed to offer a manageable standard for the court to deal with gerrymandering. Instead of intentionally discriminating against Republican voters in the 6th Congressional District, Sullivan argued that Democrats had created a competitive district.

Court watchers are closely looking at Justice Anthony Kennedy as the key swing vote in the case. He asked Kimberly why it wouldn’t be disruptive for the Supreme Court to step in now and send the case back to a lower court when 2018 elections were around the corner. He also asked Kimberly if lawmakers could draw maps that advantaged their party whether, over time, the number of their registered voters had outpaced that of the opposition party. Kimberly indicated that there could be a compelling government interest in creating districts that were more competitive.

Kennedy also pressed Sullivan to explain why the state’s congressional map, which is enacted as a piece of legislation, was any different than a constitutional provision that explicitly said the government would favor Democrats over Republicans in redistricting. While Sullivan conceded that such a provision would be unconstitutional, he said that the Maryland redistricting plan was different because it was more complex and did not have explicit discrimination written into it. Kennedy asked Sullivan if he was arguing that viewpoint discrimination was only acceptable when the lawmakers behind it hid the evidence.

The exchange between Sullivan and Kennedy underscores the deep discomfort the justices have with partisan gerrymandering and their struggle to figure out what exactly to do about it. The court is trying to determine if a manageable standard for evaluating partisan gerrymandering exists, and if so, what it might look like.

Justice Sonia Sotomayor asked Kimberly if he could apply other tests to his case to try and figure out when partisan gerrymandering is unconstitutional. Justice Stephen Breyer suggested that the court relist the Maryland case and two other cases dealing with partisan gerrymandering this term to have a clear debate about all of the merits and flaws of the several standards different parties have offered to the court to figure out how to deal with the problem. Breyer at one point said that the court needed to figure out a standard to limit extreme partisan gerrymandering, but one that would spare the Supreme Court from being required to hear an excessive number of partisan gerrymandering cases.

At one point in the hearing, Kagan suggested that the court didn’t have to set a constitutional standard in dealing with the Maryland case because there was clear evidence of intent to increase Democrats’ chances of winning. (Former Maryland Gov. Martin O’Malley (D), who oversaw the redistricting process, said in a deposition that he felt he had a duty to help Democrats win.) “However much [partisan intent] you think is too much, this case is too much,” Kagan said, prompting laughter in the court room.

But Breyer urged the court not to pass up its unique opportunity to take on partisan gerrymandering. The Maryland case, in addition to the other cases from Wisconsin and North Carolina in the current term, offered such clear examples of intentional gerrymandering that the court was unlikely to see again because lawmakers and mapmakers would be more careful in the future. Advances in computer technology, Breyer said, would mean that partisan gerrymandering would only get worse during the next cycle of redistricting unless the court stepped in.

Those who do gerrymandering, Breyer said, “are not stupid.”

This is a developing story. Check back for updates.

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