Less than six months after sidestepping a ruling on partisan gerrymandering, the justices announced this afternoon that they will once again wade into the thorny issue of when (if ever) state officials violate the Constitution by drawing district lines to favor one political party at another’s expense, this time in cases from North Carolina and Maryland. With the retirement last summer of Justice Anthony Kennedy and his replacement by Justice Brett Kavanaugh, the more conservative court could be poised to rule that courts should steer clear of such claims.
The issue of partisan gerrymandering has vexed the justices for some time. In 2004, the justices were deeply divided over a challenge to Pennsylvania’s redistricting plan. Four justices – Justice Antonin Scalia, joined by then-Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas – believed that courts should stay out of partisan-gerrymandering claims, because it is too hard to come up with a manageable test to determine when politics plays too influential a role in redistricting, while four of their colleagues – Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer – disagreed; they would have allowed courts to review partisan-gerrymandering claims. The key vote in the case came (as it so often did) from now-retired Justice Anthony Kennedy, who agreed that the Supreme Court should stay out of the Pennsylvania case but left open the door for courts to have a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found.
Many court-watchers thought that the justices might settle the issue of partisan gerrymandering once and for all, or at the very least provide more guidance, last term, in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. But the justices simply sent the case back to the lower court for it to take another look at whether the challengers in that case have the legal right to bring their lawsuit at all (a doctrine known as “standing”), without saying anything about whether courts can review partisan gerrymandering claims and, if so, what standards they should use.
On the same day they remanded Gill, the justices declined to rule on the merits of a partisan-gerrymandering challenge to a single federal congressional district drawn by Democratic officials in Maryland. Instead, in a brief unsigned opinion, they left in place a ruling by a federal court that cleared the way for election officials to use the map in the 2018 elections, stressing that the challengers had waited too long to bring their claim.
One week later, the justices sent a partisan-gerrymandering case from North Carolina back to the lower court for reconsideration in light of the Supreme Court’s decision in Gill. But just a few months after that, a three-judge district court again struck down North Carolina’s 2016 congressional map, ruling first that the challengers do have standing and then that the map was the product of partisan gerrymandering; the three-judge district court blocked the state from using the map after November 2018.
Led by Robert Rucho, who headed the state senate’s redistricting committee, North Carolina Republicans took their case to the Supreme Court. (Unlike most of the court’s docket, redistricting cases are among a narrow set of cases with an automatic right to appeal to the Supreme Court.) They were sharply critical of the lower court’s decision striking down the 2016 map, telling the justices that if “there is indeed a theory of standing for adjudicating generalized partisan grievances and a justiciable test for separating unconstitutional partisan gerrymanders from run-of-the-mill consideration of partisan advantage by legislatures organized on party lines, they will have to come from this Court.” “Indeed,” the Republicans continued, “while there are very real reasons to doubt whether such standing theories and justiciable tests exist at all, it is even more clear that the answers are not lurking in the 321-page opinion below.”
The challengers urged the justices to uphold the decision below, arguing that the three-judge district court concluded that the plaintiffs had standing to sue after it “scrupulously followed” the roadmap that the justices outlined in Gill. And “no matter how the broader issue of” whether courts should generally review partisan-gerrymandering claims is resolved, they contended, this is such an easy case that the 2016 plan cannot stand: North Carolina Republicans had an “official state policy to maximize” their party’s representation in Congress, and under the plan Republicans in 2016 won 10 out of the state’s 13 congressional seats “even though the statewide vote was nearly tied” – “the worst partisan asymmetry” in the United States that year.
Meanwhile, the Maryland case went back to the lower court, which agreed with the challengers that Democratic election officials violated the Constitution when they redrew the state’s 6th congressional district to flip it from Republican to strongly Democratic, in retaliation for the challengers’ support for Republican candidates.
The state urged the Supreme Court to weigh in, arguing that the lower court had failed to use the kind of “limited and precise” test needed to ensure that courts weren’t interfering with conduct that is perfectly permissible. Moreover, it added, the lower court should not have ordered a new map when the 2020 census (which will inevitably require redistricting) is so close and the delay is entirely the challengers’ fault.
Today the Supreme Court announced that it would review both the Maryland and North Carolina cases in March, giving it roughly three months to decide the cases before the justices’ summer recess. Having ducked a ruling on the merits of partisan gerrymandering last year, it seems unlikely that the justices will do so again, but they won’t have much time. Then again, the issues are familiar to all of them but Kavanaugh, and all eyes are likely to be on him at the oral argument in March.
This post was also published on SCOTUSblog.