The NCSL Blog

28

By Lisa Soronen

The challengers to the redistricting of Maryland’s 6th Congressional District just might win—if the U.S. Supreme Court actually decides their case.

Lawrence Hurley, Andrew Chung  6 Min Read  WASHINGTON (Reuters) - U.S. Supreme Court justices on Wednesday appeared conflicted over what to do — if anything — to rein in politicians who draw state electoral maps with the aim of entrenching their party in power in a closely watched case from Maryland over the practice known as partisan gerrymandering.  The nine justices heard an hour of arguments in a challenge by Republican voters to a U.S. House of Representatives district in Maryland drawn by Democratic state legislators. The voters, who have the backing of Republican Maryland Governor Larry Hogan, are appealing a lower court ruling rejecting their challenge.  The justices appeared to struggle to find a way to resolve the issue. Several acknowledged problems with the way Democrats drew the Maryland district.  Based on questions they asked, the justices seemed no closer to answering the major question now before them in this case and in a similar one involving Wisconsin — whether courts should be able to intervene to curb the manipulation of electoral district boundaries purely to favor one party over another.  On Oct. 3, the court, which has a 5-4 conservative majority, seemed similarly unsure on how to proceed when it heard arguments in a challenge by Democratic voters to Republican-drawn legislative districts statewide in Wisconsin, and has not yet issued a ruling.  Stephen Breyer, one of the four liberal justices, suggested that the court put off deciding the cases and instead hear another round of arguments in its next term, starting in October, along with another case from North Carolina.  Partisan gerrymandering, he said, “seems like a pretty clear violation of the Constitution in some form” but the problem is finding a “practical remedy” that would avoid forcing federal judges to decide a huge number of highly politicized cases.  In the Maryland case, there appeared little dispute on the bench that the congressional district’s lines were indeed drawn with partisan intent. ‘TOO MUCH’  Liberal Justice Elena Kagan agreed with Breyer about the problem of deciding how much partisan line-drawing is too much, but, she said: “This case is too much.”  “How much more evidence of partisan intent could we need?” Kagan added.  Conservative Justice Anthony Kennedy, a potential key vote in the case, raised concerns about a ruling so soon before the 2018 mid-term election in November that would “upset settled expectation” but also indicated there was evidence of partisan intent.  The rulings in the Maryland and Wisconsin cases, due by the end of June, could alter the U.S. political landscape, either by imposing limits on partisan gerrymandering or by allowing it even in its most extreme forms.  The Supreme Court for decades has been willing to invalidate state electoral maps due to racial discrimination but never those created just for partisan advantage.  Both parties over the years have engaged in partisan gerrymandering. Democrats have said partisan gerrymandering by Republicans in such states as Wisconsin and Pennsylvania has helped President Donald Trump’s party maintain control of the U.S. House of Representatives and various state legislatures.  Republican voters sued Maryland after the Democratic-led legislature in 2011 redrew the boundaries of the state’s Sixth District in a way that removed Republican-leaning areas and added Democratic-leaning areas. Maryland’s map led to Democrat John Delaney beating incumbent Republican Roscoe Bartlett to take the district in 2012. People gather on the plaza in front of the Supreme court before oral arguments on Benisek v. Lamone, a redistricting case on whether Democratic lawmakers in Maryland unlawfully drew a congressional district in a way that would prevent a Republican candidate from winning, in Washington, U.S., March 28, 2018. REUTERS/Joshua RobertsIn Benisek v. Lamone, the Maryland legislature in 2011 needed to move about 10,000 voters out of the 6th Congressional District to comply with “one-person one-vote.”

It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders into the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

Following the redistricting, Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. That same year, Republican gubernatorial candidate Larry Hogan won the Sixth District, beating his rival by 14 percent.

A number of 6th District Republicans sued, alleging the state legislature “targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine.”

In 2016, a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment. But two of the judges weren’t convinced that the challengers were able to demonstrate that, but for the partisan gerrymander, Republicans would have won and continued winning in the 6th District.

The Supreme Court may decide whether to accept or reject this standard. The Court has never adopted a standard or legal theory for when partisan gerrymandering is unconstitutional.

At oral argument, nearly all the justices asked questions suggesting they didn’t think they should even decide the case because there isn’t enough time for new maps to be drawn in Maryland for the 2018 election.

In asking questions about the merits of the case, predictably the more liberal justices seemed more inclined to want to rule the redistricting in this case was the result of unconstitutional First Amendment retaliation.

Justice Anthony Kennedy asked questions of the attorneys arguing for both sides but seemed quite skeptical of the redistricting in this case. He asked the attorney defending the plan whether it would be OK for the state legislature to pass a law saying it would favor one party in redistricting. Building on that hypothetical, Justice Elena Kagan suggested that is pretty much what happened in this case.

Interestingly, Chief Justice John Roberts, while helping out the plan challenger’s attorney at times, asked the attorney numerous questions including whether it really makes sense to include in the same district hobby farmers in Potomac, Md., with real farmers in western Maryland. 

Justice Stephen Breyer suggested a novel idea. Earlier in the term the Supreme Court heard oral argument in Gill v. Whitford, which also raises the question about whether and when partisan gerrymandering claims are justifiable. The court may also agree to review a case from North Carolina where a three-judge court ruled unconstitutional partisan gerrymandering occurred.

Breyer suggested hearing all these cases together so the court may consider all the pros and cons of the various legal theories and tests the court has been encouraged to apply for determining when partisan gerrymandering rises to the level of being unconstitutional.

Unless the rest of the court goes along with Breyer, the court will issue an opinion in this case by the end of June.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.