SCOTUS Set To Hear Another Partisan Gerrymandering Case

Wednesday, 28 Mar, 2018

But they appeared frustrated with what to do about it - without becoming the constant police officer on the beat.

Act Iopened the first week in October when the nine justices heard arguments in a case testing whether there is any constitutional limit to partisan gerrymandering - the practice of drawing legislative district lines to maximize and perpetuate the power of the incumbent party.

Breyer's comment is an indication that the justices haven't figured out the Wisconsin case in the almost six months since it was argued.

As we chronicled at the end of past year, SCOTUS has expanded its review of the matter by adding a second case to its docket, one in which Maryland Republicans brought an action indicating Democrats in that state had drawn a district that should be thrown out on similar grounds.

That is the kind of argument that Democrats have made about lots of other states in which Democrats are underrepresented in the House.

While the case before the court today focuses on just one state, both major political parties are closely monitoring the issue of gerrymandering and the drawing of congressional maps ahead of an important midterm election cycle. Those carefully tailored arguments-along with a political climate critics say has grown more coarse and partisan as noncompetitive districts encourage politicians to play to the ideological extreme-have raised expectations for the cases. "However much you think it too much", she said, "this case is too much".

The challengers say Democrats diluted the votes of Republicans in that district, moving them to another district that had a safe margin for Democrats.

Chief Justice John Roberts, however, anxious about the courts getting involved in the issue expressing some concern that it could make them look political. It stretches from the Washington suburbs to the more rural, western part of the state. "They both have farms".

The court's eventual answer in the Maryland and Wisconsin cases, by the end of the term in June, will likely come too late for this year's elections.

Finally, there's the legal theory the plaintiffs are using.

The political explanation was spurred by a comment by Roberts during the Wisconsin arguments.

The Maryland case is a companion to one from Wisconsin in which Democrats complain about a Republican-drawn map of legislative districts. Recently a state court in Pennsylvania redrew congressional districts there, possibly serving to erase the Republicans' 12-6 district advantage.

If the court strikes down Maryland's redistricting, it may find an unlikely fan: Mr. O'Malley. Now, before even deciding that one, the court is taking up another similar case.

Equal protection or free speech? As one of few states then under unified Democratic control, Mr. O'Malley said, Maryland was obligated to mitigate the disadvantage his party suffered elsewhere.

What's the difference between this case and the other gerrymandering cases before the Supreme Court? That district now includes Democratic portions of Montgomery and Frederick counties as well as the heavily Republican Maryland panhandle.

And, as is evident in many cases before the court in its current makeup, there is the likelihood that any decision could be on a narrow 5-4 vote with Associate Justice Anthony Kennedy holding the keys to the majority position. In 2004, he provided the fifth vote for the court staying out of partisan gerrymandering cases, but he made it clear that he remained open to finding a way to measure what is unconstitutional gerrymandering based on party and he specifically mentioned the First Amendment notion that government action can not punish people based on partisan affiliation. "It was a decision that was made by those that set up the statutory process that put the pen for redistricting in the hand of whichever man or woman the people elected to be governor", he said.