Supreme Court Asks "How Much Gerrymandering Is Too Much Gerrymandering?"

Leaving alone state legislatures, the most corruptely gerrymandered states in the Union are North Carolina, Texas, Wisconsin, Ohio, Maryland, Kentucky, Louisiana, Virginia, Illinois, Utah, West Virginia, Michigan and Arkansas. Pennsylvania would be in there if the state Supreme Court hadn't put a stop to it and redrawn the congressional districts. The state legislative districts are still a joke that should be addressed.

Ohio, for example, is a 50/50 state that Obama won in 2012 and Trump won in 2016. There's a Democratic senator and a Republican senator. In theory, the state's 16 congressional seats should yield 8 Republicans and 8 Democrats. But the magic gerrymandering gives Congress 12 Republicans and just 4 Democrats. Neither Steve Chabot's Cincinnati seat more Bob Latta's seat in the northwest corner of the state is a legitimate district and both should be Democratic districts except for extreme partisan gerrymandering by the legislature. North Carolina is worse. Obama won it once and lost it once-- both times very narrowly and the state has a Democratic governor. Yet the Republican legislature managed to create a map that yields 10 Republican seats and just 3 Democratic seats instead of 7 Republican seats and 6 Democratic seats. There's no way George Holding, Richard Hudson and Todd Budd should be congressmen. Their districts are absurdly contrived.

On Wednesday the Supreme Court heard oral arguments in a case in which Republicans are bitching about the unfair Democrats in Maryland.

Republicans who sued to overturn the congressional district lines that Maryland implemented after the 2010 census map found allies in the court’s four liberal justices, who expressed sympathy for their claims during oral arguments.

What’s less clear is whether those four can recruit another justice to their side-- the most likely targets would be Chief Justice John Roberts or Justice Anthony Kennedy, typically the high court’s swing vote on election law cases. Both asked tough questions, but neither tipped his hand.

At issue was Maryland’s 6th Congressional District, represented for 20 years by a Republican. After the 2010 census, Democrats in the state legislature and the then-Democratic governor redrew the district lines to move large numbers of Democratic voters into the district. Democratic Rep. John Delaney won the seat in 2012 and was reelected twice after.

A ruling against the map could fundamentally alter the redistricting process in the 37 states where the legislature draws the lines, limiting the parties’ ability to create maps to their advantage. But even if the court strikes down the map, the justices on Wednesday made clear they are still wrestling with whether the case could result in clear guidelines for partisan gerrymandering in the future.

Justice Elena Kagan said the court doesn’t need to dictate firm standards for redistricting to know that “this case is too much”-- in other words, that Maryland’s map goes too far in partisan gerrymandering. She pointed to statements from then-Gov. Martin O’Malley and other Democrats that the sole purpose in drawing the districts the way they were configured was to increase the party’s advantage in the congressional delegation.

“From the governor to Congressman [Steny] Hoyer, people were very clear about what they were trying to do here, which is to create another Democratic district,” said Kagan.

Justice Sonia Sotomayor agreed. Questioning Maryland Solicitor General Steven Sullivan, she said the Republican plaintiffs had presented “some pretty damning” evidence to suggest lawmakers were driven by politics.

“You have your own governor saying that he felt ‘duty-bound’ to make sure that his party won,” she said.

And Justice Stephen Breyer said the map “seems like a pretty clear violation of the Constitution-- in some form.” He asked whether there was “a practical remedy” for fixing it but suggested the court should do something about what he repeatedly called “extreme gerrymandering.”

The court’s conservative justices, on the other hand, appeared unwilling to strike down the Maryland map.

“I really don’t see how any legislature will ever be able to redistrict” if the Republican plaintiffs are successful, Justice Samuel Alito told Michael Kimberly, the plaintiffs’ attorney. “This court said time and again that you can’t take all partisan advantage out of redistricting.”

And Justice Neil Gorsuch pointed out during the hourlong hearing that Maryland voters approved the map in a referendum at the ballot box. Ballot Question 5 in 2012 passed with more than 64 percent of the vote.

So what's Gorsuch's problem? A related case, Gill v. Whitford-- Wisconsin, another 50/50 swing state that Obama won twice and Trump won (narrowly). But... gerrymandered up so badly the Republicans lost the statewide legislative elections but still won almost two-thirds of the districts! A lower court has already struck down the map that Wisconsin Republicans had devised to maximize their control of the state. That case is just hanging with no clear settlement.

The Maryland challengers object to only one district's design, while the Wisconsin challengers object to the whole state's redistricting. That said, drawing new lines for one district would, of necessity, have ripple effects, changing the lines in others.

Another difference is the major legal argument. The Wisconsin challengers argue that extreme gerrymandering deprived Democratic Party voters of the equal protection of the law guaranteed by the Constitution, while the Maryland challengers contend that the gerrymander there deprives Republicans of their First Amendment rights by making their speech, their votes, less valuable. But each of these arguments feeds into the other. And statistical analyses suggest that each argument, if adopted, would produce pretty much the same results.

The First Amendment argument, however, appeals, in particular, to the justice whose vote is likely to decide the case, Justice Anthony Kennedy. 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 cannot punish people based on partisan affiliation.

Election expert Rick Hasen, of the University of California, Irvine, said that Justice Kennedy, 81, knows he will not be on the court forever.

"It's put-up-or-shut-up time," Hasen said. "Either he's going to say, 'We've got to start policing this' or he has to recognize that what is going to happen in the next round in 2020 is going to look a lot worse than in this round, that it's going to be no-holds-barred, squeeze out whatever you can, in favor of your party and against the other party."