On March 26, the Supreme Court heard oral arguments in two redistricting cases: Benisek v. Lamone from Maryland and the consolidated cases Rucho v. Common Cause and League of Women Voters of North Carolina. In the former case, individual Republican voters have challenged the drawing of Maryland’s Sixth District (in the western part of the state). In the latter case, the challenge is to the map implemented by the Republican-controlled legislature in response to a racial gerrymander case. This is the first time since the retirement of Justice Kennedy and the installation of Justice Kavanaugh that the court has heard arguments regarding partisan redistricting.
The most interesting moments belong to Justice Kavanaugh, who doesn’t have a record of interactions from previous hearings, but who was quite engaged here. “Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.” He also wondered whether other remedies—state courts, Congressional action, or state ballot initiatives—could solve the problem without Supreme Court action. “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.The main concern of the justices was the same in this hearing as it has been throughout the history of gerrymandering cases: Is the question of how districts are drawn (or indeed partisan actions by elected officials in general) justiciable? That is, is it a question that the courts can or should decide? On the negative side, justices cite the Constitution’s stipulation that state legislatures should determine the “times, places, and manner” of elections, subject to supervision by Congress. In addition, some justices expressed concern that by intervening in partisan matters, the courts risked their reputation for being nonpartisan. Hence the search for an impartial standard by which to determine whether partisan gerrymandering is out of bounds. Further, Justice Gorsuch pointed to voter initiatives in some states that have mandated independent commissions as providing an alternative remedy.
On the other side, the argument is that partisan gerrymandering violates the First Amendment guarantees of freedom of speech and association and the Fourteenth Amendment guarantee of equal protection by discriminating against voters in the minority party. Not all states allow voter initiatives (South Carolina does not). And while Congress could act (HR-1 in the current session has passed the House and requires independent commissions), it has not yet and it is unlikely that it will soon.
One interesting aspect of the arguments here is that conservative justices expressed concern about the effect on Republicans of the Maryland map. It seems that hearing one case from each side of the political divide might have opened some justices’ minds to arguments from the other side.