The Supreme Court has a big decision left to make as it heads into its final weeks of the term: whether to strike down a voter map for the first time as an unconstitutional partisan gerrymander.
Experts agree it would be a game changer if the court is able to find a workable test to assess when legislators have gone too far in drawing congressional maps that give their party an edge.
The court has longed shied away from policing congressional maps without a clear way to measure how much political bias in redistricting is too much.
Court watchers say Justice Anthony Kennedy, a likely swing vote, has been looking for a standard since 2004 when the court refused to wade into a dispute over Pennsylvania’s map.
Kennedy signaled at the time that while the court did not have a clear solution then, one could be found eventually.
“That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” he said.
But it’s anyone’s guess whether Kennedy and other justices have since settled on a standard.
“Legislators have taken advantage of computer mapping and the ability to identify the likely votes of virtually every voter to really warp the democratic system, and I think the court recognizes that – or at least five justice recognize that,” said David Cole, national legal director at the American Civil Liberties Union.
The court has two cases before it to resolve in the coming weeks – Gill v. Whitford, a challenge to Wisconsin’s 2011 redistricting plan, and Benisek v. Lamone, a challenge to the lines of Maryland’s 6th District, currently represented by Rep. John Delaney (D).
In the Wisconsin case, Democratic voters argue that the Republican-controlled legislature drew the districts with a discriminatory intent to dilute the Democrats’ voting power throughout the state.
In Maryland, Republicans are the ones arguing Democrats put them at a disadvantage. They claim top Democrats in the state in 2011 drew the district lines intentionally to dilute the votes of Republicans and their support for the incumbent, then-Rep. Roscoe Bartlett (R).
The Supreme Court has yet to rule in either case, despite having heard arguments in the Wisconsin challenge on the second day of the court’s term last year.
Adam Feldman, the creator and author of the blog Empirical SCOTUS, said that only 10 cases have taken longer to decide since 1946.
“I have to think the hold up is that they’re trying to decide these cases together and they’re having an issue with Gill,” he told The Hill.
Though both cases involve challenges to partisan gerrymandering, Barry Burden, a political science professor and director of the Elections Research Center at the University of Wisconsin-Madison, said the justices could be having a hard time reconciling the different legal theories being argued.
“It’s complex and having two cases muddies the waters rather than clarifying them,” Burden said.
Justin Levitt, a professor at Loyola Law School in Los Angeles who runs the website All About Redistricting, said the justices could make lower courts decide what standard to use.
However, Levitt said he believes that the justices are more likely to create a basic principle that it is unconstitutional to intentionally disadvantage one party and say there are a number of ways it can be proven.
“The court very rarely when it weighs in on an issue explains all the contours of an issue,” Levitt said. “Commonly it says here’s the basic principle and we’ll tell you about the next case when it comes.”
The stakes are high as justices weigh a decision.
During oral arguments in October, Chief Justice John Roberts expressed concern that throwing out the Wisconsin map could invite a flood of litigation.
Wisconsin state officials warned striking down the maps could lead to a third of all maps drawn in the last 45 years being challenged.
Feldman said if the Supreme Court were to strike down either one or both maps, it will likely do so on narrow grounds.
“They could find some kink in the system, but I have to think it’s going to be so specific that it doesn’t create this snowball effect, this avalanche of cases that will go to district courts and inevitably will attempt to get tested at the Supreme Court,” he said.
“I don’t think that’s what they want to be in the business of doing.”
If the court goes the other way and upholds the maps, legal experts say it will likely open the door to an unprecedented level of partisanship in the redistricting process.
“There will be a shakeup one way or another,” Burden said.
Justices could also choose to punt the issue by tossing the cases out or holding them over to be reargued in the next term.
Another partisan gerrymandering case out North Carolina is pending before the court. Levitt said the justices could decide to hear all three together.
Justice Stephen Breyer even suggested it during arguments in the Maryland case.
“What would you think of taking the three cases and setting them for re-argument on the question of standing?” Breyer asked Michael Kimberly, the attorney arguing on behalf of the Maryland voters challenging their district map.
Levitt said that while it is rare for the court to reargue cases, the possibility cannot be ruled out.
“Though everyone in the country would be disappointed, it’s not a crazy response,” he said.
BY LYDIA WHEELER – 06/17/18