WASHINGTON – A divided Supreme Court returned to the subject of partisan gerrymandering Tuesday, considering for a second time in two years whether drawing election maps to help the party in power ever violates the Constitution.
Justice Brett Kavanaugh, the court’s newest member and the one who may possess the decisive vote, expressed uneasiness about the practice.
“Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.”
He added, though, that recent developments around the nation — including state ballot initiatives establishing nonpartisan redistricting commissions, proposed legislation in Congress and state Supreme Court rulings — may make action from the U.S. Supreme Court less necessary.
“Have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?” he asked.
Kavanaugh was an exceptionally active participant in Tuesday’s arguments, asking probing questions of both sides and displaying particularly detailed familiarity with the geography and voting districts of Maryland, his home state. But his record as an appeals court judge provides few hints about how he will approach the issue.
The other justices seemed largely divided along ideological lines, with the more conservative ones wary of announcing constitutional limits on the partisan gerrymandering and the more liberal ones prepared to try. There was certainly no consensus on how to fashion a legal standard to separate acceptable partisanship from the kind that is unconstitutional. Justice Stephen Breyer proposed a numerical test, but it did not seem to gain traction.
Justice Neil Gorsuch, on hearing one lawyer’s proposed standard, said it amounted to “I know it when I see it.”
Last year’s cases, from Wisconsin and Maryland, 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 Kennedy, who had expressed ambivalence, but he and his colleagues appeared unable to identify a workable constitutional test. The justices instead sidestepped the central questions in the two cases.
On Tuesday, almost exactly a year after they last considered the Maryland case, the court again heard arguments from GOP voters there who said their rights had been violated by a congressional district they said had been drawn to diminish their voting power.
The court also heard arguments in a second challenge, this one from North Carolina Democrats who said the state’s congressional map yielded a 10-3 GOP majority despite very close statewide vote counts.
A ruling that limited partisan gerrymandering could transform U.S. politics, reshaping House maps in several states, often but not always to the benefit of Democrats.
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.
The court’s decision to hear the new partisan gerrymandering challenges did not signal any particular enthusiasm for addressing the issue.