Supreme Court justices said Tuesday that extreme partisan gerrymandering is a problem, but struggled to settle on a formula that states could use to figure out when they’ve gone too far in packing too many Democrats or Republicans into a single district.
They were being asked for the second consecutive year to try to settle a growing fight over how legislative maps are drawn, with challenges to a GOP-drawn map in North Carolina and a Democratic-written plan for Maryland.
In each case the party out of power complained that legislators had drawn the maps to dilute their voting power.
But the justices wondered how they could impose a solution from on high.
“We might pluck a number out of the air,” said Justice Neil M. Gorsuch, who appeared skeptical of efforts to find a universal solution. He suggested states might tackle the matter on their own.
Yet Justice Elena Kagan said the problem won’t heal itself if left to the political vagaries of the states.
“Justice Gorsuch’s attempts to save what’s so dramatically wrong here, which is the court leaving this all to professional politicians who have an interest in districting according to their own partisan interests, seems to fail,” Justice Kagan said.
The scope of the challenge is clear.
In North Carolina, Democratic candidates won 51 percent of the statewide vote in the 2018 midterm elections — but only won three House seats, compared with nine for the GOP.
In Maryland, meanwhile, more than 66,000 GOP voters were moved from one district into other districts after the last census, diluting their strength and delivering another seat — and a 7-to-1 advantage — in the state’s congressional delegation.
Lower courts in both cases sided with voters who said they were hurt by the “packing” into districts, thus diluting their First Amendment rights of free association.
Paul Clement, a lawyer who argued on behalf of North Carolina’s map, said the founders were well aware of partisan line-drawing — no less than Patrick Henry gerrymandered a district to try to keep James Madison from winning a congressional seat.
“All three authors of the Federalist Papers knew about this and didn’t think there was a judicial solution,” Mr. Clement said.
He said if the justices rule partisan gerrymandering is illegal, it will open the court to a slew of challenges.
“Once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics,” he warned.
Chief Justice John G. Roberts Jr. said history is replete with gerrymandered maps.
“You’d agree that if you had a partisan-free map, you said is required, that would be the first time in history, right?” he told the lawyer representing the Maryland voters.
But the court’s newest member, Justice Brett M. Kavanaugh, appeared sympathetic to voters, and suggested the Equal Protection Clause of the Constitution may require equal treatment of political groups.
Allison Riggs, an attorney representing the Democratic voters in North Carolina, argued the court should adopt a “vote dilution test” where judges — if deciding a partisan gerrymandering challenge — would analyze whether there was partisan intent to discriminate against a certain party, whether one party was disadvantaged and whether there’s a justification for moving certain voters in and out of various districts.
In a Wisconsin case last year, opponents of partisan gerrymandering pushed for the justices to find an “efficiency gap,” setting a definitive number or percent for the legal amount of “wasted votes” in a given district. Though the high court has suggested extreme partisan gerrymandering could be unconstitutional, the justices failed to clarify the law last term, punting on the issue.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.