USA TODAY International Edition
High court could reshape elections
Justices get 6th chance to rule on redistricting
WASHINGTON – The extreme partisanship gripping American politics could be reduced by two landmark cases coming to the Supreme Court on Tuesday, and Chief Justice John Roberts looms as the deciding vote.
For the second consecutive year, the high court is considering something it has never done before: declaring as unconstitutional election maps drawn blatantly by state legislators to gain partisan advantage.
On the chopping block will be congressional districts set by North Carolina Republicans and Maryland Democrats to give their candidates an overwhelming advantage during the past decade.
More broadly, what’s at stake is the way state and congressional election districts are redrawn once every decade in most states – a system dominated by political self-interest that grows
more intense every time the Supreme Court declines to tame it. If the justices fail to act, election districts drawn after the 2020 census could be even more extreme, leading to more lopsided elections and more gridlock in Congress.
The court has declined to intervene five times, most recently last year, when the justices refused to decide challenges in Wisconsin and Maryland. Opponents of partisan gerrymandering hope the sixth time will be the charm.
If the Supreme Court decides the congressional maps in either North Carolina or Maryland violate the Constitution by relegating some voters into irrelevance, it could signal a sea change in the way legislatures controlled by one party have tried to rig the mapmaking process.
“Our hope is that there is a concern about basic fairness,” says Dan Vicuña, national redistricting manager at Common Cause, which is challenging the North Carolina map. “Either side of the political aisle can be the victim of this.”
Like a ‘Globetrotters game’
For the past decade, Democrats have been hurt by gerrymandering the most. Republicans seized power in many states in the 2010 midterm elections, giving them control over the redistricting process. Democrats are at a disadvantage entering the 2020 elections, which will determine who draws the next decade’s state and congressional lines in most states.
“Where extreme partisan gerrymandering exists, district lines are drawn in a manner that ensures that all seats remain safe,” former California Gov. Arnold Schwarzenegger and Maryland Gov. Larry Hogan, both Republicans, argue in court papers. “In such districts, elections are as predictable as a Harlem Globetrotters game.”
That’s not always the case. When state legislative power is shared – or in eight states, including California, where the process is governed by a commission – the maps often are drawn fairly.
The Supreme Court has ruled on multiple occasions that race cannot be a major factor in the way district lines are drawn, but it has yet to set a standard for how much politics is too much. The court’s more conservative justices have been reluctant to choose political winners and losers.
Last year, the court sidestepped the issue, sending cases from Wisconsin and Maryland back to lower courts for further review. The justices said challengers to the design of 99 state Assembly districts in Wisconsin could not tackle the entire map at once but must target specific districts. They said challengers to Maryland’s congressional map did not merit an immediate fix because they had waited six years to bring their claim.
Though she concurred in that ruling, Associate Justice Elena Kagan warned that something must be done to curb Democrats’ and Republicans’ political instincts when drawing districts.
“The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record,” she said. “The technology will only get better, so the 2020 cycle will only get worse.”
North Carolina’s congressional map looms as the freshest test. The facts aren’t even in dispute: Lawmakers in the relatively “purple” state, where the statewide congressional vote swings back and forth between Democrats and Republicans, declared their intentions on camera.
“We want to make clear that to the extent we are going to use political data in drawing this map, it is to gain partisan advantage,” state Republican Rep. David Lewis said. He proposed a 10-3 edge for Republicans “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
To achieve that goal, the map packed Democrats into three districts and spread them among the other 10. In one glaring example, it split North Carolina A&T State University, the nation’s largest historically black college, between the 6th and 13th Congressional Districts, ensuring that most students would vote for losing candidates.
“The North Carolina case is about as extreme as you’re ever going to get,” says Paul Smith, one of the lawyers representing the League of Women Voters in the case.
The Maryland map returning to the high court was drawn by the Legislature’s Democratic majority to give it seven of the state’s eight congressional seats. The battle is over one district that was redesigned in 2012 to oust a GOP incumbent.
That rural 6th District is home to 40 miles of the Appalachian Trail, but it was stretched to include wealthy suburbs of Washington. Heading into the 2010 elections, it had nearly 50,000 more registered Republicans than Democrats. Two years later, the reverse was true.
Roberts drew attention to the lengthy stretch during oral argument last year. “Part of the issue here is you have people from, you know, Potomac joined with people from the far west panhandle,” he said. “I mean, they both have farms but the former, hobby farms . ... The others are real farms.”
Yet when the time came to render a verdict in the Wisconsin case, the chief justice said it wasn’t the court’s job to police partisanship.
“This court is not responsible for vindicating generalized partisan preferences,” Roberts wrote. “The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
“The technology will only get better, so the 2020 cycle will only get worse.”
‘Equal opportunity offense’
In a case upholding the rights of major campaign donors in 2014, the chief justice wrote, “There is no right more basic in our democracy than the right to participate in electing our political leaders.”
Challengers to the North Carolina and Maryland congressional lines say that right effectively is taken away when voters are placed in districts where their vote is diluted. They hope Roberts wants to avoid a 5-4 ruling in which all the majority votes come from Republican presidents’ nominees.
“I think the chief justice is keenly aware of these political overtones and will want to say ... this is an equal opportunity offense,” says Michael Kimberly, who represents the Maryland challengers. “This is not about picking one party over the other.”
Associate Justice Elena Kagan