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Supreme Court criticizes partisan election maps, but a fix proves elusive

Richard Wolf

WASHINGTON – Supreme Court justices signaled Wednesday they don't like the way states draw one-sided election districts, but they did not appear ready to devise a solution.

Protesters rallied outside the Supreme Court Wednesday as the justices heard a challenge to Maryland's partisan congressional maps.

After an hour's debate over maps drawn by Maryland's state Legislature to give Democrats seven of the state's eight seats in Congress, the court was no closer to fixing the problem of partisan gerrymandering.

Justice Stephen Breyer suggested that the court come back next term and hear cases from Maryland, Wisconsin and North Carolina together. The various proposals from challengers, he quipped, could be put on a "blackboard" for the justices to review.

"It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering," Breyer said of the Maryland map drawn in 2011 to reduce Republican seats in Congress from two to one. "But is there a practical remedy that won't get judges involved in dozens and dozens and dozens of very important political decisions?"

The court's effort to tackle the way most state legislatures draw congressional and state legislative districts includes a Wisconsin case heard in October and a North Carolina case that's been put on hold. The high court refused this month to intervene in Pennsylvania, where the state Supreme Court struck down congressional districts drawn by Republicans and imposed its own map for the 2018 election.

Across the nation, hundreds of members of Congress and thousands of state legislators are elected in districts drawn to favor the party that controls state government. That has largely favored Republicans during the past decade, as the justices heard in October in the Wisconsin case. But the court has never found partisan gerrymandering to be unconstitutional.

The Wisconsin map gave Republicans nearly two-thirds of the state Assembly seats in an otherwise politically balanced state. Challengers told the court last fall that the GOP-drawn lines violated their constitutional rights to equal protection. They offered mathematical equations to determine when the process goes awry, but Chief Justice John Roberts called that "sociological gobbledygook."

Rather than decide that case quickly, the justices opted to hear the Maryland case, which is different in several respects. It favors Democrats rather than Republicans, focuses on a single district rather than statewide, and alleges that lawmakers retaliated against voters because of their support for the GOP.

Maryland and Wisconsin are not alone in their political favoritism. A decision striking down one or both maps could threaten equally partisan state and federal district lines from Texas to Massachusetts

As the clock ticks toward November, the justices said any decision in the Wisconsin and Maryland cases likely would come too late to be implemented for this year's elections. For that reason, several justices suggested they send the Maryland case back so a federal district court can conduct a full trial.

Some conservative justices went further, suggesting there may be no standard the court could find for how much politics is too much. If the court set one based on the Maryland challengers' First Amendment claim, Justice Samuel Alito said, "I really don't see how any legislature will ever be able to redistrict."

Several justices raised another problem: What if a redrawn map was worse than the one designed for partisan gain, such as changing a one-sided district to be more competitive? Under the challengers' theory, they said, that could be unconstitutional.

The court's liberal justices said Maryland Democrats clearly went too far when they redrew a congressional district won for two decades by a conservative Republican so he would lose in a landslide in 2012.

"People were very upfront about what they were trying to do here," Justice Elena Kagan said. "How much more evidence of partisan intent could we need?"

Roberts noted the mapmakers drew wealthy Democrats from Washington, D.C., suburbs such as Potomac into a district stretching west to West Virginia. "They both have farms," Roberts said, "but the former, hobby farms, and the others are real farms."

Justice Anthony Kennedy, the potential swing vote in all the gerrymandering cases, said the Maryland state Constitution would not be allowed to mandate that lawmakers favor one party over another, yet the state achieved the same goal by enacting the new lines. 

Other justices worried that if they declared Maryland's maps unconstitutional, states would find a way to redraw them while still favoring the party in power.

"We'll never have such a record again," Breyer said. "I mean, the people who do the gerrymandering are not stupid."

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