Share This Page


A Front-Row Seat for Act II of the Supreme Court’s Gerrymandering Drama


4/6/2018

By Carrie L. Davis, Director, Democracy Program

I recently had the privilege of attending oral argument in the second case of this U.S. Supreme Court term on the question of whether extreme partisan gerrymandering rises to the level of being unconstitutional, and if so, when. As someone who has practiced election law and led redistricting reform efforts over the years, I was especially excited to sit in the Supreme Court lawyers section and have a front row seat to hear what concerns the high Court had about Maryland’s gerrymander. (And, I confess, I had a total fangirl moment when RBG walked in.)

The Supreme Court has had gerrymandering cases in the past where it declined to say if extreme partisan gerrymandering goes too far, but many in the legal community think this time the Court will weigh in. In fact, many of us who attended argument on March 28th were hoping for a sign indicating how the justices would rule on the Wisconsin redistricting case heard earlier this term.

But we were out of luck. The Court didn’t say, and, in fact, it appears to still be wrestling with how to resolve these cases.

Yes, it’s unusual for the Supreme Court to hear two separate cases on the same issue in one term. Usually, such cases are combined and argued together on the same day. But in this instance, the Court accepted Benisek v. Lamone from Maryland just weeks after it heard argument on the Wisconsin case. And since accepting the Maryland case, the Court has been asked to intervene in cases out of North Carolina and Pennsylvania, as well.

There are a few differences in the two cases heard thus far. In Wisconsin, the Republican party gerrymandered the map to minimize Democrat districts statewide, and in Maryland the Democrats gerrymandered to eliminate a reliably Republican district. The Wisconsin case argues the gerrymandering violated the Fourteenth Amendment by denying equal protection (treating voters differently based on political affiliation). The Maryland case argues gerrymandering violates the First Amendment by in effect penalizing some voters based on their political views (lawyers call this “viewpoint discrimination”).

However, there were a few intriguing clues doled out by the Court in what NPR’s Nina Totenberg has dubbed “Extreme Partisan Gerrymandering: The Supreme Court’s Play in 3 Acts.”

It was apparent many of the justices think gerrymandering has gone too far and become too extreme. As Justice Kagan quipped during the state’s argument, “however much is too much, this is too much.” Everyone in the courtroom chuckled, but it was the first good clue that maybe this time the Court will draw the line.

No question the partisan intent to gerrymander was on display in Benisek, where there was ample evidence the party in control redrew District 6 because they wanted to flip it from red to blue.

But proving discrimination against political points of view may not always be as clear. Justice Kennedy wondered if the gerrymanderers of the future will cover their tracks, hiding their intent behind closed doors. In the same vein, Justice Breyer noted that “the people who do redistricting are smart, and we won’t have facts like this again.”

This gets back to one of the underlying questions: how much is too much? Several of the conservative justices – in the arguments for both Benisek and Whitford – asserted that you can’t take all politics out of it, so where do you draw the line? Is it okay in some cases but not others? Or, as Chief Justice Roberts asked, do you have to show vengeful intent?

Sitting in the courtroom, with its grand marble columns and air of history, one can’t help but wonder if other cases sparked this same level of debate. Certainly, over 200 years, the Court has wrestled with how to craft a legal standard for numerous tricky political questions. But it was fascinating to be sitting in the room listening to some of the justices muse out loud, “If we pick one of these standards, what are we missing?” (to paraphrase Justice Breyer).

There are several paths the justices could choose to take. If they choose to go with a First Amendment standard, the test could require looking at a variety of factors to weigh burden and harm of alleged “viewpoint discrimination.” If they choose the Fourteenth Amendment, the plaintiffs in Whitford offered a mathematical formula -- the “Efficiency Gap” -- as one possible way to measure equal protection imbalances that swing a map in favor of one party. Although as Justice Kagan aptly pointed out, courts are likely to rely on the same evidence regardless of which legal standard they choose.

So, does it matter which one they pick? Lawyers are hoping for a standard that is at least clearer than Justice Potter Stewart’s famous “I know it when I see it” test for determining obscenity. And the courts want to avoid an endless string of cases – they don’t want every single district map coming to them for review.

Ultimately, the Court has until the end of its term to reach a decision and issue a ruling. That’s Act III of Nina Totenberg’s drama, which court watchers expect in late June. Will their decision change the legal landscape to prevent political parties from rigging election districts in their favor in future elections? 

Stay tuned.