The Gerrymandering Saga
Before the 2020 elections, Supreme Court rulings have the potential to dramatically change the Congressional election districts of four states, three of which are swing states. North Carolina and Maryland have already been awaiting a ruling to judge the validity of previously drawn district maps when the Court blocked two other state rulings from Michigan and Ohio last Friday, May 24. To block these lower court rulings and grant a stay a majority was required, however, it is still in question how the court will rule. Although the two cases will receive two separate rulings, they are very similar and will bear the same significance before 2020. The first two cases, North Carolina and Maryland, heard oral arguments in the Supreme Court in March and can give some indication to how opinions will turn out for the next two states. In these two decisions, the Court must answer two significant questions. First, whether the redistricting of these states is unconstitutional gerrymandering and if the plaintiffs bear enough evidence to prove it. The second, whether or not gerrymandering disputes can be decided by court rulings under the constitution in the first place.
The cases of the states argued in March, Maryland and North Carolina, began with 2011 Congressional redistricting of Maryland under Governor Martin O’Malley which led to Benisek v. Lamone. The plaintiffs were the Republicans alleging that the redistricting unfairly caused Democratic victories in 2012, 2014, and 2016. After 2011, a “safe” GOP seat was won by a Democrat by a 20.9% margin. The plaintiffs sought a motion for the state to require new maps by 2018, which the District Court denied because it would refer to a case in Wisconsin, Gill v. Whitford. Nevertheless, it is now in the hands of the Supreme Court along with Rucho v. Common Cause from North Carolina. This is a similar case of a newly drawn Congressional map in 2016 that the plaintiffs argue is partisan gerrymandering for the Republicans. This time it is the Democrats as plaintiffs. As of Friday, May 24, the Court now has two other cases in Michigan and Ohio. Both involve accusations of the Republicans unfairly drawing district lines after large GOP victories. Republicans now hold 13 of 18 seats in Ohio and 7 of 14 in Michigan.
Although the round of oral arguments on March 26 did not end in a ruling, it provides a good indication of how the justices would form their opinions for all four states. On the case for North Carolina, Paul Clement argued for the Republican legislators where he made the same case that conservative Supreme Court justices made in 2004, that the judiciary should stay out of this matter. Clement spoke on the responsibilities given to each branch of government by the Constitution, and how it gives the responsibility of drawing congressional districts to the political branches. He explained how this power is given first to state legislators and second to Congress itself. Also emphasized is how the Supreme Court has never been able to create a consistent standard to rule on partisan gerrymandering cases in the past, and opening the dispute up to the Court would create a flood of the same types of cases and destroy its reputation for other matters. Besides basing their argument off the Constitution, the Republican case bears strength by remaining consistent in both states where they are accused in one, and the plaintiffs in the other.
Allison Riggs made the case for the Democratic challengers that if left solely to state legislators and Congress, the problem of gerrymandering is not self-correcting. She furthermore stated that if there is any possible solution outside of the Court, the benefits do not outweigh the costs, as she reasoned, “the reputational risk to the Court of doing something is much, much less than the reputational risk of doing nothing, which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out.” Similar to their opposition, the challengers remained consistent between North Carolina and Maryland, as the Maryland solicitor general, Steven Sullivan also argued and supported the idea of the Supreme Court creating a standard for gerrymandering, and urged the justices to overturn the lower courts.
The conservative-leaning Supreme Court justices seemed to agree with the arguments from Clements, that the Court should not be involved with this case, most definitively justices Kavanaugh and Gorsuch. Justice Gorsuch recalled how state legislators have handled gerrymandering in the past without a court case. Kavanaugh agreed with this as well as Allison Riggs’ statement that “extreme partisan gerrymandering is a problem for democracy”, however, countering that it can be prevented in Congress. Also indicating support for this argument was Chief Justice John Roberts, adding that voters follow more than simple partisanship. As a whole, the conservative wing questioned the attorneys on whether the constitution even allows gerrymandering disputes to extend to the courts and whether it requires proportional representation of Congressional districts in the first place.
The left-leaning justices showed evidence that they will continue to support court arbitration on this issue. Most common, as Justice Stephen Breyer did, is to give examples of specific legal formulas or tests that could reasonably be applied to all Congressional district disputes in the future. His formula would only take certain disputes to court, being those in which a party wins a majority of the statewide vote but the other party wins more than two-thirds of available seats. Ideas such as Breyer’s can counter the opposition claim that Court arbitration of gerrymandering disputes will flood the Supreme Court with similar cases. An interesting interaction came between Steven Sullivan and Justice Elena Kagan, where she informed him that if the court created a system to only rule on cases considered “excessive”, Maryland’s district redrawing would be excessive by any conceivable measure. The justice emphasized that Republicans only hold one seat of the eight-member delegation, while they make up 35 percent of the population.
If we assume the conservative majority votes along similar lines to the views of Gorsuch and Kavanaugh, it is possible that the Supreme Court will rule against handling the disputes from all four states completely. Chief Justice John Roberts could be the questionable and decisive seat. Although the court has yet to hold oral arguments for disputes in Michigan and Ohio, there is little reason to assume they will perceive things differently. Regardless, the fact that two rulings could induce the redrawing of Congressional districts in three swing states before 2020 elections makes this a controversial and impactful case.