Supreme Court Takes Up New Cases on Partisan Gerrymandering

Protesters demonstrated against gerrymandering in Wisconsin during a rally in front of the Supreme Court in 2017.

WASHINGTON — The Supreme Court agreed on Friday to take another look at whether the Constitution bars extreme partisan gerrymandering. The move followed two decisions in June in which the justices sidestepped the question in cases from Wisconsin and Maryland.

Those earlier cases had raised the possibility that the court might decide, for the first time, that some election maps were so warped by politics that they crossed a constitutional line. Challengers had pinned their hopes on Justice Anthony M. Kennedy, who had expressed ambivalence on the subject, but he and his colleagues appeared unable to identify a workable constitutional test.

Justice Kennedy’s replacement by Justice Brett M. Kavanaugh makes a ruling limiting partisan gerrymandering less likely, election law experts said. Indeed, the court could rule that the Constitution imposes no limits on the practice.

The court’s decision to add two new cases on the question to its docket did not signal any particular enthusiasm for the project. While the court has almost complete discretion in deciding whether to hear most kinds of cases, Congress has made an exception for some disputes concerning elections. In those cases, Supreme Court review is all but mandatory.

The justices will hear arguments in March and are expected to rule by the end of June.

The first case the court took up, Lamone v. Benisek, No. 18-726, is a sequel to the one from Maryland that it declined to decide in June.

The case was brought by Republican voters who said Democratic state lawmakers had in 2011 redrawn a district to retaliate against citizens who supported its longtime incumbent, Representative Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.

Mr. Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Representative John Delaney, a Democrat, by a 21-point margin.

In 2017, a divided three-judge panel of the United States District Court in Maryland denied the challengers’ request for a preliminary injunction. In dissent, Judge Paul V. Niemeyer, who ordinarily sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., wrote that partisan gerrymandering was a cancer on democracy.

“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy,” Judge Niemeyer wrote. “Indeed, both Democrats and Republicans have decried it when wielded by their opponents but nonetheless continue to gerrymander in their own self-interest when given the opportunity.”

“The problem is cancerous,” he wrote, “undermining the fundamental tenets of our form of democracy.”

The challengers appealed to the Supreme Court, which unanimously ruled against them in June. In a short, unsigned opinion, the court said the challengers had waited too long to seek an injunction blocking the district.

In November, the three-judge panel took a fresh look at the case and ruled that the challenged district was unconstitutional. It barred state officials from conducting further congressional elections using the 2011 maps and ordered them to draw new ones.

The second case, Rucho v. Common Cause, No. 18-422, is an appeal from a decision in August by a three-judge panel of a Federal District Court in North Carolina. The ruling found that Republican legislators there had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates. The court stayed its decision, and the 2018 election was conducted under the old map.

The case had reached the Supreme Court once before. In June, the justices ordered the lower court to reconsider an earlier ruling in light of the Wisconsin decision. That earlier decision, issued in January, was the first from a federal court to strike down a congressional map as a partisan gerrymander.

After reconsidering the case, the three-judge panel basically reaffirmed its earlier ruling. The judges noted that the legislator responsible for drawing the map had not disguised his intentions. “I think electing Republicans is better than electing Democrats,” said the legislator, Representative David Lewis, a Republican. “So I drew this map to help foster what I think is better for the country.”

The plan worked. In 2016, the court said, Republican congressional candidates won 53 percent of the statewide vote. But they won in 10 of the 13 congressional districts, or 77 percent of them. Depending on the outcome of one seat in the midterm elections in November, the numbers in the 2018 election will be identical or quite similar.

The Supreme Court has ruled that racial gerrymandering can violate the Constitution. But it has never struck down a voting map as an unconstitutional partisan gerrymander.

Opponents of partisan gerrymandering said they welcomed the opportunity to try to persuade the justices to act.

“Whether it is Democrats or Republicans manipulating the election maps, gerrymanders cheat voters out of true representation,” Karen Hobert Flynn, the president of Common Cause, said in a statement. “The Supreme Court has the opportunity to set a clear standard that will restore a meaningful vote to millions of Americans disenfranchised by gerrymanders in Maryland, North Carolina and across the country.”

Paul M. Smith, a lawyer with the Campaign Legal Center, said the Supreme Court’s rulings in the two cases will be consequential.

“If the Supreme Court fails to set limits on this undemocratic practice,” he said in a statement, “we will see a festival of copycat gerrymandering in 2020 the likes of which the country has never seen before.”

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