The Supreme Court heard arguments Wednesday about whether a legislative map for Maryland that led to a Republican lawmaker’s defeat at the polls was unconstitutional.
It’s the second time this term that the justices have weighed the constitutionality of partisan gerrymandering. In October, the justices heard arguments in a case challenging Wisconsin’s 2011 redistricting map.
The cases have raised speculation about whether the court for the first time might strike down a map as overly partisan.
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In Wednesday’s arguments, the majority of the justices appeared to agree that Maryland officials had created an unconstitutional partisan gerrymander in redrawing its 6th Congressional District after the 2010 Census. The new lines cost Rep. Roscoe Bartlett (R) his seat in the House.
Justice Elena Kagan said Maryland Gov. Martin O’Malley (D) and Rep. Steny Hoyer (D) have been very upfront about the fact that they were trying to create another Democratic district.
“What the Maryland legislature did was to shuffle 360,000 people out and bring in 350,000 people. The result of that is that the district went from 47 percent Republican and 36 percent Democratic to exactly the opposite, 45 percent Democratic and 34 percent Republican,” she said.
“How much more evidence of partisan intent do we need?”
Republican voters in Maryland argue Democratic officials, in drawing the map, intentionally diluted their vote to retaliate against them for supporting Bartlett for two decades. They say this violated their First Amendment rights.
The earlier case in Wisconsin involved Democrats claiming that Republican officials had redrawn the state’s legislative maps to put them at a disadvantage.
Legal analysts say the court likely took the Maryland case in addition to the Wisconsin case to settle the issue in a neutral way without siding with one political party over another.
During the hour-long arguments, Justice Anthony Kennedy, the court’s regular swing vote, gave Maryland Solicitor General Michael Sullivan a hypothetical.
“Suppose the Maryland Constitution had a provision that required that partisan advantage for one party be the predominant consideration in any districting,” he said.
“Lawful or not?”
Sullivan said it would be unconstitutional and the court could strike it down as viewpoint discrimination.
“How is this case different?” Kennedy asked.
In order to strike down a district as a partisan gerrymander, the court has suggested it has to find a way to test if partisan politics have played an unconstitutionally excessive role.
But the justices appeared no closer to finding that workable standard they seek on Wednesday.
“Is there a practical remedy that won’t get judges involved in every or dozens and dozens and dozens of very important political decisions?” Justice Stephen Breyer asked, seemingly frustrated.
He even suggested filling the court with blackboards that could show all the possible tests for measuring partisan gerrymandering that have been proposed.
Attorney Michael Kimberly, representing the plaintiffs in Wednesday’s case, said the test should be whether map-drawers have singled out voters for how they voted in the past and intentionally made it harder for them to elect their candidate in the future.
“According to this court’s First Amendment retaliation and ballot access cases, government officials may not single out particular individuals for disfavored treatment on the basis of the views that they have expressed at the ballot box in prior elections,” he said.
But Justice Samuel Alito questioned how any legislature will be able to redistrict under that theory.
“Hasn’t this court said time and again you can’t take all consideration of partisan advantage out of districting?” he asked.
How the justices will resolve the two cases is very much in question. A joint decision is possible, but the justices on Wednesday questioned whether the Maryland case is even justiciable.
Chief Justice John Roberts asked Kimberly if the Republican voters in the district are really being harmed by the map, given there’s already been elections under the newly drawn district.
“Obviously, you argue you would be in this particular election, but if you’ve been willing to accept that harm in three different cycles, I don’t know if we should get concerned about irreparable harm for one more,” Roberts said.
Updated: 3:02 p.m.