Supreme Court justices troubled by partisan gerrymandering, but unsure how to control it

WASHINGTON – Supreme Court justices, hearing arguments Wednesday in a Maryland gerrymandering case, signaled again they are troubled when politicians draw election districts solely to give their party more seats in Congress.

But they appeared equally frustrated over the question of what – if anything – the court should do about it.

The Maryland case seemed to most of the justices to represent an extreme and obvious example of partisan gerrymandering, which, unlike racial gerrymandering, has not been outlawed.

“What is this, except about politics?” Justice Elena Kagan asked a state lawyer for Maryland. She said the Legislature under Democratic control had shifted 350,000 voters and transformed a strong Republican district into one that now reliably elects another Democrat to Congress. “However much you think is too much, this case is too much,” she said to laughter in the courtroom.

Others agreed. Chief Justice John G. Roberts Jr. agreed that the state has redrawn its districts “to prefer one party over another.”

But to a surprising degree, the justices still seemed uncertain as to how to rule. Roberts and Justice Samuel A. Alito Jr. said legislatures have to redraw districts after the census, and politics will invariably play some role in how the lines are drawn.

“This seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering. But is there a practical remedy that won’t get judges involved in every, or dozens and dozens of very important political decisions?” asked Justice Stephen G. Breyer in a question that went largely unanswered and seemed to hang over the argument.

The constitutionality of partisan gerrymandering is the most significant question before the court this term. Since the 1980s, the justices have repeatedly criticized politicians for drawing election districts that entrench their party in power. But they have also repeatedly failed to rule that such politically motivated redistricting violates the Constitution.

This decade has seen more extreme gerrymandering, particularly in battleground states such as Michigan, Ohio, Wisconsin, Pennsylvania and North Carolina. Republicans won sweeping victories in the 2010 midterm elections, and they used their power to redraw election maps so as to maintain control of the House of Representatives.