The justices seemed to be struggling Wednesday with an appeal by Republican voters in Maryland who object to a congressional district that Democrats drew to elect a candidate of their own.
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But business is business, and this business was politics.
Maryland’s attorney general, Brian Frosh, argued in a brief that the challenge’s theory is “novel”. Everyone was very upfront about what they were doing, Kagan observed: The 6th district went from being 47% Republican and 36% Democrat to exactly the opposite. “Yes, this was clearly my intent”, O’Malley said in a deposition last spring. The core issue, though, is fundamentally the same in both cases: Can a state legislature draw district lines with the principal goal of helping one political party and hurting the other?
In fact, Republicans this year are likely to face a Democratic tsunami in the same way Democrats suffered the converse in 2010. It’s always unsafe to infer too much from Justices’ statements and questions during oral arguments, but the hints in today’s proceedings suggested that the Court, as a whole, may not be ready to put an end to gerrymandering. Whether the court’s injecting itself into the redistricting process – which is inherently political – is a good idea is another matter entirely.
But redistricting experts warned that a failure to rule against purely political gerrymandering could trigger even more partisan schemes after 2020.
Lines for Pennsylvania’s state legislative districts – 50 Senate seats and 203 House seats – are drawn by a committee of legislative leaders, plus an additional member. Maryland Democrats are retaliating against them for their historical support of Bartlett by making it impossible for a Republican to prevail in their district, in violation of the First Amendment, they claim.
In the case the Supreme Court may decide whether to accept or reject this standard. Pennsylvania elections may not affect SC college students, but the midterm elections (and national election) certainly do, and the change in gerrymandering policy in Pennsylvania may find its way south of the Mason-Dixon line soon enough. Lawmakers were redrawing districts because a different federal judicial panel had stuck down the Legislature’s 2011 redistricting plan as an unconstitutional racial gerrymander. The claim was that Republicans did so by packing a high percentage of black voters into 11 state House districts under a 2011 redistricting plan.
The justices already heard arguments in October in a case out of Wisconsin about whether a state’s political maps can be challenged on the basis that they entrench a benefit to one political party over another. The census figures, among other things, are used in setting up congressional districts.
The case: USA and state House maps enacted in 2011 by the Republican governor and GOP-led Legislature were tossed out in 2012 by a federal court, which produced new interim maps.
Others agreed. Chief Justice John G. Roberts Jr. agreed that the state has redrawn its districts “to prefer one party over another”.
Regardless of the winners in 2018, the case before the Supreme Court Wednesday, and a similar case in Wisconsin heard past year, could fundamentally alter the complex and consequential process of drawing legislative districts in the United States. Had he initiated the process of holding a special election back then, the general election in those races could have come in the first week of April, timed to coincide with a race for an open state Supreme Court seat.
Two bills, SB22 and HB722, would fix our redistricting method by creating an impartial and independent citizens commission to draw legislative district boundaries. Many of them also asked three of the bills’ prime sponsors – who are Democrats – whether they think independent commissioners could vote as a bloc to push an agenda, or whether the commissioners would understand hard concepts legislators themselves sometimes struggle with.
The case: A federal lawsuit filed last April alleges that two state House districts were unconstitutionally gerrymandered by the Republican-led Legislature in 2015 to increase the percentage of white voters and decrease the percentage of black voters.
During oral arguments, the justices pressed Michael Kimberly, the lawyer representing the Republicans, on what kind of political consideration lawmakers could take into account when they were drawing districts. Opponents of this process charge that politicians today effectively pick their voters, instead of voters picking their representatives.
“Well, Mr. Sullivan, let’s say you’re right, that they have not shown us how much is too much, that they have suggested that in any forum, when there’s partisan advantage, the courts should be intervening”, Kagan said. It produced a district that is competitive, he said.
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The case is Benisek v. Lamone.
