Gerrymandering: Voting rights and redistricting for elections collide at Supreme Court

Richard Wolf

WASHINGTON – The extreme partisanship gripping American politics could be reduced by two landmark cases coming to the Supreme Court on Tuesday, and Chief Justice John Roberts looms as the deciding vote.

For the second consecutive year, the high court is considering something it has never done before: declaring as unconstitutional election maps drawn blatantly by state legislators to gain partisan advantage.

On the chopping block will be congressional districts set by North Carolina Republicans and Maryland Democrats to give their candidates an overwhelming advantage during the past decade.

More broadly, what's at stake is the way state and congressional election districts are redrawn once every decade in most states – a system dominated by political self-interest that grows more intense every time the Supreme Court declines to tame it. If the justices fail to act, election districts drawn after the 2020 census could be even more extreme, leading to more lopsided elections and more ideological gridlock in Congress. 

The court has declined to intervene five times, most recently last year, when the justices refused to decide challenges in Wisconsin and Maryland. Opponents of partisan gerrymandering hope the sixth time will be the charm, but the court's conservative majority stands in the way.

Or does it?

Since the high court took on a more contentious political air during last fall's confirmation of Associate Justice Brett Kavanaugh, Roberts has sided with liberal justices in several cases that would have drawn attention to the court's 5-4 divide between conservatives and liberals. Those included abortion-related cases from Louisiana and Kansas, religious liberty cases from California and New Jersey, and death penalty cases from Texas and Alabama.

None of those is as consequential as the gerrymandering cases to be heard Tuesday.

If the Supreme Court decides the congressional maps in either North Carolina or Maryland violate the Constitution by relegating some voters into irrelevance, it could signal a sea change in the way legislatures controlled by one party have tried to rig the map-making process.

“Our hope is that there is a concern about basic fairness," says Dan Vicuña, national redistricting manager at Common Cause, which is challenging the North Carolina map. "Either side of the political aisle can be the victim of this.”

Like a 'Globetrotters game'

For the past decade, Democrats have been hurt by gerrymandering the most. Republicans seized power in many states in the 2010 midterm elections, giving them control over the redistricting process. Democrats are at a disadvantage entering the 2020 elections, which will determine who draws the next decade's state and congressional lines in most states.

"Where extreme partisan gerrymandering exists, district lines are drawn in a manner that ensures that all seats remain safe," former California Gov. Arnold Schwarzenegger and Maryland Gov. Larry Hogan, both Republicans, argue in court papers. "In such districts, elections are as predictable as a Harlem Globetrotters game."

That's not always the case. When state legislative power is shared – or in eight states, including California, where the process is governed by a commission – the maps often are drawn fairly. 

The Supreme Court has ruled on multiple occasions that race cannot be a major factor in the way district lines are drawn, but it has yet to set a standard for how much politics is too much. The court's more conservative justices have been reluctant to choose political winners and losers.

Last year, the court sidestepped the issue, sending cases from Wisconsin and Maryland back to lower courts for further review. The justices said challengers to the design of 99 state Assembly districts in Wisconsin could not tackle the entire map at once but must target specific districts. They said challengers to Maryland's congressional map did not merit an immediate fix because they had waited six years to bring their claim.

Though she concurred in that ruling, Associate Justice Elena Kagan warned that something must be done to curb Democrats' and Republicans' political instincts when drawing districts.

"The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record," she said. "The technology will only get better, so the 2020 cycle will only get worse."

Republicans 10-3, Democrats 7-1

North Carolina's congressional map looms as the freshest test. The facts aren't even in dispute: Lawmakers in the relatively "purple" state, where the statewide congressional vote swings back and forth between Democrats and Republicans, declared their intentions on camera.

"We want to make clear that to the extent we are going to use political data in drawing this map, it is to gain partisan advantage,” state Republican Rep. David Lewis said. He proposed a 10-3 edge for Republicans "because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

More: Stumped in two cases on partisan election maps, Supreme Court could turn to North Carolina next term

To achieve that goal, the map packed Democrats into three districts and spread them among the other 10. In one glaring example, it split North Carolina A&T State University, the nation's largest historically black college, between the 6th and 13th Congressional Districts, ensuring that most students would vote for losing candidates.

“The North Carolina case is about as extreme as you’re ever going to get,” says Paul Smith, one of the lawyers representing the League of Women Voters in the case. 

The Maryland map returning to the high court was drawn by the Legislature's Democratic majority to give it seven of the state's eight congressional seats. The battle is over one district that was redesigned in 2012 to oust a GOP incumbent.

That rural 6th District is home to 40 miles of the Appalachian Trail, but it was stretched to include wealthy suburbs of Washington. Heading into the 2010 elections, it had nearly 50,000 more registered Republicans than Democrats. Two years later, the reverse was true.

More: Political maps under fire as Supreme Court case on tailor-made districts looms

Roberts, who lives in nearby Chevy Chase, drew attention to the lengthy stretch during oral argument last year. "Part of the issue here is you have people from, you know, Potomac joined with people from the far west panhandle," he said. "I mean, they both have farms but the former, hobby farms. ... The others are real farms."

Yet when the time came to render a verdict in the Wisconsin case, the chief justice said it wasn't the court's job to police partisanship.

"This court is not responsible for vindicating generalized partisan preferences," Roberts wrote. "The court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it."

'Looking for a way out'

During last year's cases, Associate Justice Anthony Kennedy was the swing vote. He has since retired, and all eyes now are on Roberts.

In a case upholding the rights of major campaign donors in 2014, the chief justice wrote, "There is no right more basic in our democracy than the right to participate in electing our political leaders." 

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Challengers to the North Carolina and Maryland congressional lines say that right effectively is taken away when voters are placed in districts where the weight of their vote is diluted. They hope Roberts wants to avoid a 5-4 ruling in which all the majority votes come from Republican presidents' nominees, which has happened only once this term.

“I think the chief justice is keenly aware of these political overtones and will want to say ... this is an equal opportunity offense," says Michael Kimberly, who represents the Maryland challengers. "This is not about picking one party over the other.”

Roberts may be inclined to render a minimalist decision that leaves most of the heavy lifting to Congress and the states. The U.S. House of Representatives passed legislation this month that would give the power to draw congressional maps to independent commissions – something Colorado, Michigan and Missouri voters approved in November.

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"The democratic process is actively engaged in this," says Misha Tseytlin, a former Wisconsin solicitor general who filed a friend-of-the-court brief on behalf of members of Congress from North Carolina. "The value of democracy is allowing the people to solve their own problems.”

Former U.S. solicitor general Paul Clement, who will argue the case for North Carolina lawmakers, says in court papers that "courts simply do not have any business making value-laden judgments about how much politics is too much in a process that will never be free of politics."

Whatever the court decides could affect several other states with lawsuits pending, including Michigan, Ohio and Wisconsin. Last year, the justices let stand the Pennsylvania Supreme Court's decision striking down that state's congressional map and replacing it with one that helped Democrats win more seats in November.

If the justices strike down the North Carolina or Maryland maps, "every single map in the country is going to be subject to this kind of attack," warns Jason Torchinsky, who argued against that result in court papers on behalf of the Republican National Committee. 

“I believe Roberts is looking for a way to get the court out of these questions,” he says.

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This article originally appeared on USA TODAY: Gerrymandering: Voting rights and redistricting for elections collide at Supreme Court