Conservative Justices Hesitant About Judicial Remedy for Partisan Gerrymandering

By Jess Bravin and Brent Kendall (WSJ)

Updated March 26, 2019 7:26 p.m. ET

Majority suggests problems are better solved by voter initiatives, state constitutions, politicians

WASHINGTON—The Supreme Court again appeared hesitant Tuesday to embrace a judicial remedy for partisan gerrymandering, with no justice in the conservative majority expressing enthusiasm for myriad formulas offered in separate cases to address an age-old practice of American politics.

Instead, the conservatives questioned the assertion of a right that they said the Constitution fails to provide—that of “proportional representation” in Congress—and suggested that if problems exist in political redistricting, they are better solved by other institutions, such as voter initiatives, state constitutional principles or even by politicians themselves.

Justice Neil Gorsuch observed that five states have no congressional gerrymanders, as their small population provides them but a single seat in the House of Representatives. Voters in several other states, he added, recently transferred redistricting power to independent panels from the legislature.

“I just happen to know my home state of Colorado this last November had such a referendum on the ballot that passed overwhelmingly,” Justice Gorsuch said. “I’m just wondering, what’s the scope of the problem here?”

Liberal justices insisted the claims before them were pleas not for group rights, but rather for a judicial check on the most extreme forms of partisan entrenchment that reduce large minorities of voters or even emerging majorities to political irrelevance.

“The benchmark is not proportional representation. The benchmark is the natural political geography of the state plus all the districting criteria, except for partisanship,” said Justice Elena Kagan.

With most justices having long staked out their views, attention focused on the court’s newest member, Justice Brett Kavanaugh. Acknowledging claims that gerrymandering is a threat to democracy, Justice Kavanaugh said, “I’m not going to dispute that.” The question, he said, was whether federal courts were the right body to address it. “Have we really reached the moment, even though it would be a big lift for this court to get involved, where other actors can’t do it?”

Chief Justice John Roberts, the court’s new pivotal vote in most cases, repeated his longstanding concerns about the court getting too tangled up with redistricting, enmeshing the court in intrinsically political matters. Even if one state’s map is extreme, the challenge is “to state a principle that we’re going to be able to apply to other cases,” he said.

Besides, he said, “what do you do with the fact that partisan identification is not the only basis on which people vote?” Elections can vary, he said, based on a candidate’s appeal or who is at the top of the ticket. Justice Sonia Sotomayor responded that “the possibility of an aberration” didn’t diminish the power of computer predictions of voter behavior that lawmakers use to draw political districts.

At issue were cases from North Carolina and Maryland that presented the court with another opportunity for considering electoral maps drawn by one party to expand its power beyond its share of support among voters. In the North Carolina case, the Republican state Legislature crafted a congressional map that gave the GOP a solid 10-3 advantage in the state delegation, even as voters in the state are closely split between the two parties. In Maryland, a Democratic Legislature re-drew districts in 2011 to snatch a congressional district from Republicans, leaving the GOP with one seat in the eight-member House delegation. Map makers in both states explicitly said they were drawing lines to expand their power.

The court over decades has tried several times to decide what, if anything, it should do about such maps, but so far hasn’t been able to reach any conclusion.

For years, Justice Anthony Kennedy occupied the middle ground, willing to entertain challenges to partisan gerrymanders yet failing to accept any specific measure for finding too much partisanship in the process. The cases before the court Tuesday were crafted to answer his concerns, in the North Carolina case through specific criteria for measuring the degree of partisan entrenchment gerrymanders can achieve, or, in the Maryland suit, through a First Amendment theory of retaliation against voters for expressing their political views against the majority party.

But Justice Kennedy’s retirement last year deprived the challengers of their target audience.

Justice Stephen Breyer, a pragmatist on the court’s liberal wing, said he was looking for a legal principle that would leave most state maps in place, yet weed out truly extreme outliers. He proposed a rule that would invalidate a map if one party received more than 50% of the vote, while the other party won more than two-thirds of the seats.

“It could be a starting place,” he said, but others on the court appeared cool to the approach.

Paul Clement, representing the North Carolina mapmakers, said there’s nothing wrong with drawing districts for partisan reasons, adding that it was better that lawmakers were so candid about it.

He warned the court that a win for the challengers would lead to a flood of cases. “And once you get into the political thicket”—a term Justice Felix Frankfurter used in the 1940s to warn against judicial review of legislative maps—”you will not get out and you will tarnish the image of this court,” he said.

Lawyers for the challengers said a ruling for the states would lead to widespread manipulation of voting lines for partisan gain.

“The reputational risk of doing something is much, much less than the reputational risk of doing nothing, which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out,” said Allison Riggs, a lawyer representing plaintiffs in the North Carolina case.

The court’s decision is expected by the end of June.

Write to Jess Bravin at jess.bravin@wsj.com and Brent Kendall at brent.kendall@wsj.com

Appeared in the March 27, 2019, print edition as 'Court Wary Of Ruling On Political Districting.'