The NCSL Blog


By Lisa Soronen

The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional.

People gather during a rally to coincide with the Supreme Court hearings on the redistricting cases in Maryland and North Carolina, in front of the U.S. Supreme Court in Washington on March 26, 2019.Mandel Ngan / AFP - Getty ImagesBefore argument, court watchers were focused on Chief Justice John Roberts, but during argument Justice Brett Kavanaugh stole the show. 

In the 1986 case Davis v. Bandemer, six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination. 

Most recently, last term, with Justice Anthony Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering.

The two cases before the court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively.

Now that the court has five solidly conservative members, many have speculated that these justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question. 

In oral argument last term, Roberts, now the court’s likely swing Justice, used the term “sociological gobbledygook” when expressing his skepticism about the court being able to agree to a satisfactory test.

Today, as is typical, the chief asked questions of both side. For example, he questioned the merits of a test that assumes how people will vote based on past voting, noting how often predictions of how people will vote are wrong. On the other hand, he acknowledged that the Maryland gerrymander “seems to be retaliation” and noted that the Supreme Court has an “established analysis” to deal with First Amendment retaliation claims. 

Kavanaugh stole the show by suggesting—repeatedly—that proportional representation could be a requirement of the Equal Protection Clause. Everyone Kavanaugh asked agreed that proportional representation isn’t currently required. For this reason those defending various tests went out of their way to argue that their test doesn’t measure the deviation from proportional representation. At minimum, Kavanaugh’s notion that a lack of proportional representation could violate the constitution suggests that he thinks partisan gerrymandering claims are justiciable. 

The parties arguing that the plans in these cases constitute unconstitutional partisan gerrymanders, all offered different tests for assessing a redistricting plan’s constitutionality. Justice Stephen Breyer offered a test of his own that if one party casts the majority of votes but the other party wins two-thirds of the seats the plan is likely unconstitutional. While the other more liberal justices seemed sympathetic to the position that partisan gerrymander claims are justiciable none explicitly embraced Breyer’s test. 

Unsurprisingly, the attorney defending the North Carolina redistricting plan mentioned the authority of state legislatures to redistrict in his opening. Another widely discussed theme, most prominently by Justices Neal Gorsuch and Kavanaugh, was the possibility that partisan gerrymandering can be solved by some other body—state courts or referendum, for example.  

The Supreme Court will issue an opinion in Rucho v. Common Cause and Benisek v. Lamone by the end of June.

Lisa Soronen is executive director of the State and Local Legal Center and a regular 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.