A successful and deliberate effort by Maryland’s Democratic leaders to take a congressional seat away from Republicans might be just the kind of “partisan gerrymander” that the Supreme Court could now be ready to rule unconstitutional. But would that clarify anything about how much partisanship in drawing new election maps is too much?
That is where America’s fervent new debate over this constitutional puzzle stood after an hour-long argument before the Justices on Wednesday morning. It was more than clear that not a single Justice is inclined to uphold the map that now defines the lines of Maryland’s Sixth Congressional District – lines that have produced a Democratic winner in three straight elections after being in Republican hands for years.
Justice Elena Kagan asked meaningfully: “How much more evidence of political intent do we need?” Justice Sonia Sotomayor suggested that the state’s Democratic leaders “were very upfront” about their aim, and they got it. Justice Ruth Bader Ginsburg noted that the Court in the past had frowned on drawing election districts that were loaded up with black voters, so she asked: “If ‘max-black’ was no good, why should ‘max-Democratic’ be okay?”
And Justice Stephen G. Breyer seemed to read the record of what happened in Maryland as an example of “extreme gerrymandering,” adding that “we’ll never have such a record again. I mean, the people who do the gerrymandering are not stupid.” What he clearly meant was that nullifying this map without setting some standards would only lead to more subtle manipulation.
It had already become clear, before this hearing, that those are the four Justices who would most like to see the Court develop an approach to curing the deepening partisanship of redistricting.
The other four Justices who also took part in the argument (Justice Clarence Thomas kept his usual silence) were less vivid, but none of them showed any inclination to accept the Maryland map.
So, if it were to turn out to be easy for the full Court to nullify what happened to the Maryland Sixth, would that solve anything about less-obvious political manipulation of district lines? Breyer answered: “We will not do much to deal with the problem of serious dimensions that is national.” He added: “If you think what’s happened now is something, wait until you see those computers really working.”
It is possible, using highly sophisticated computers and highly detailed data about voter behavior in past elections, to skew a new districting map precisely to maximize one political party’s advantage over the other. The Justices seemed to regard the Democrats’ ploy in Maryland as proof of that.
The Maryland case is the second one the Justices are reviewing this term in the pursuit of a workable constitutional formula for judging partisan gerrymandering. The other, a Republican-advantaging state legislative map for Wisconsin, was heard in October and awaits a decision.
If the Justices have been discussing in the nearly six months since the Wisconsin hearing how to craft such a formula, they gave no hint of it during Wednesday’s hearing in the Maryland case. Most of the Justices probed for flaws or weaknesses in the formulas the two opposing lawyers were advancing, without even implying what would be a better approach.
At the center of the Maryland case is the claim that partisan gerrymandering should be ruled unconstitutional under the First Amendment, on the theory that it is a form of punishment or retaliation against voters for their past favoritism of the party that comes up on the short end of a new districting plan. The Wisconsin case, and, indeed, most attempts to challenge partisan gerrymanders, are based on claims under the Constitution’s guarantee of equality – that is, that partisan advantage treats people of one party in a discriminatory way.
It has been apparent for some years that Justice Anthony M. Kennedy would be inclined to embrace a First Amendment limit on partisan gerrymanders, but he has not spelled that out in a specific formula. He showed some sympathy again for the general idea at Wednesday’s hearing, but again stopped short of detailing when invalid retaliation would be found, unless it was so blatant a partisan reprisal as to be beyond any doubt.
There were enough hard questions for the lawyer representing the Republican voters’ challenge to the Sixth District’s Democratic cast to suggest that his version of how to define partisan retaliation had not quite carried the day. At the same time, there were enough hard questions for the lawyer defending the existing map to suggest that the Justices probably are not leaning toward staying on the sidelines to allow the partisan manipulation to go on unchecked.
If, as seemed obvious, the Court is still in fairly early stages of exploring how to provide some kind of meaningful check on the practice, they just might reach the end of the current term without having found that destination.
Justice Breyer perhaps was hinting at such uncertainty when he came up, perhaps on his own, with a proposition for the Court. Why not, he suggested, take the three partisan gerrymandering cases now on the docket – those from Maryland and Wisconsin and one from North Carolina not yet acted upon – and schedule them together for a combined argument at the Court’s next term.
That would allow the Justices, he suggested, to have arrayed before them all of the various ideas now circulating in legal briefs on how to devise a constitutional test for partisan gerrymandering, with the lawyers then challenged to debate the “pros and cons” in direct comparison.
There is no way to know whether Breyer was bringing into the open something the Justices might have discussed. But, if the Justices are having difficulty sorting through the dueling theories, the Breyer idea would have the virtue of keeping the Justices out of this year’s election campaign.
Were they to decide the cases now before them this term, the opinions almost certainly would not be ready until near the end of June – in the heat of the congressional campaign. The Justices no doubt are aware of the potential for intruding into that process, and they could avoid that by putting the cases over until after the balloting is done in November.