When the Supreme Court hears oral arguments Wednesday, examining whether partisan gerrymandering can violate voters’ constitutional rights, the time-honored ability of the two» parties to draw congressional maps to maximize their advantages will be under existential threat.
In the case in question, the justices will examine whether Democrats improperly retaliated against Republican voters in Maryland by changing district lines to beat a GOP congressman. It’s the second such case currently before the high court, which last year heard arguments over Wisconsin’s GOP-drawn state legislative map.
Taken together, the two cases raise the prospect the court could soon put limits on how far the parties can go in redistricting — and could erase some of the decade’s most egregious political maps.
Though the Supreme Court is hearing arguments about maps drawn by each party, Republicans remain in control of the redistricting process in a greater number of states. That means a ruling establishing restrictions on political considerations would likely boost Democrats, at least in the short term.
But Democrats are the ones under the court’s microscope in the Maryland case, which centers on a unique legal theory: That, in tweaking the borders of a western Maryland-based congressional district, the Democratic-controlled Legislature and then-Gov. Martin O’Malley were punishing voters for supporting Republicans in the past, including then-GOP Rep. Roscoe Bartlett. That punishment, the plaintiff’s theory says, amounts to a violation of their First Amendment rights.
“The map drawers and Democratic leaders in Annapolis in 2010 and 2011 looked at the way voters had cast their ballots in the 6th District in the years before redistricting and in effect disapproved that,” said Michael Kimberly, the lead attorney for the plaintiffs in the case.
Bartlett was first elected in 1992, and in each of his nine successful reelection campaigns, he never earned less than 57 percent of the vote. But after the 2010 Census, Democrats in Annapolis took aim at his district, tweaking the lines so it took in more of the well-heeled, heavily Democratic bedroom communities near Washington, including Potomac.
Democratic Rep. John Delaney, who is retiring this year to mount a 2020 presidential bid, has held the district since 2012. And Republicans, who for most of the previous decade held two of the state’s eight congressional districts, were down to only one seat in the state.
“The evidence in our case shows the goal was to go from a quote-unquote 6-2 map to a 7-1 map,” Kimberly said.
In the larger, national House landscape, one Democratic seat in Maryland does little to offset Republicans’ overall advantage in drawing the district lines. The GOP electoral sweep in the 2010 midterm elections allowed the party to take control of the line-drawing process in a number of states, giving the party an advantage for the decade in elections both for state legislatures and Congress.
A report last week from the Brennan Center for Justice at New York University Law School suggests that, because of the way the districts are drawn, Democrats may need to win the aggregate congressional popular vote by 11 percentage points this fall to reclaim the House majority. While some experts claim that overstates the built-in GOP advantage, court-imposed limits on partisan redistricting would boost Democrats.
Advocates say court action is needed more now because of far more sophisticated redistricting software and more streams of granular data to slice voters into districts where the electoral outcomes are predetermined.
“If the Supreme Court does not get involved, it’s only going to get worse,” said Michael Li, senior counsel at the Brennan Center’s Democracy Program.
Already, legal action at the state level has helped Democrats chip away at hostile maps in two large states: Florida and Pennsylvania. In each of the two states, the state’s highest court threw out the maps drawn by Republicans for improperly taking into account partisanship. Democrats gained a seat in Florida in the 2016 elections, but they are poised to gain between two and six seats in Pennsylvania this year under a new, court-drawn map.
And litigation over partisan gerrymandering is still ongoing in a number of other states. A federal court voided North Carolina’s congressional map earlier this year — the first time a federal court had thrown out district lines because of excessive partisanship, not because of racial considerations or unequal populations. The Supreme Court has put that ruling on hold while it considers the Wisconsin and Maryland cases.
Another partisan gerrymandering case is pending in Michigan, where Republicans have held a 9-to-5 advantage in the delegation for the entire decade.
Criticism of gerrymandering is nothing new. Former Massachusetts Gov. Elbridge Gerry was pilloried by a local newspaper for signing a state legislative map in 1812 that maximized his party’s advantage with oddly shaped districts, including one that resembled a salamander.
But good-government activists and other reformers have succeeded in recent years in constraining partisan gerrymandering in a number of states. An independent commission now draws maps in California following a successful 2010 ballot initiative. That same year, Florida voters approved an amendment to the state constitution that prohibited legislators from considering electoral performance when drawing the state’s congressional districts; it led to Republicans’ first map, used in the 2012 and 2014 elections, to be voided by a court.
In Ohio, there will be an initiative on the ballot this May to establish a bipartisan commission that would draw a congressional map if the legislature didn’t produce one on a bipartisan basis.
Increasingly, redistricting is a political campaign issue, too. The Maryland case puts Democrats on the defensive. The state’s GOP governor, Larry Hogan, has long fought Democrats in the state over redistricting, and he signed a friend-of-the-court brief backing the challengers to the map in the current case.
The National Democratic Redistricting Committee, the group headed by former Attorney General Eric Holder and backed by former President Barack Obama, was founded after 2016 to fight Republican gerrymanders across the country — and to help Democrats win at the state level between now and 2021, when the maps will be redrawn again.
The NDRC’s communications director, Patrick Rodenbush, told POLITICO that the group is monitoring the Maryland case and believes “there should be some guardrails” for states in partisan redistricting. “The Supreme Court now has an opportunity to tell Democrats and Republicans if there’s a line that you can’t cross,” he said. “And we think that would be good.”
Democrats, including the NDRC, aren’t counting on the high court to erase all the GOP-drawn maps. The Democratic Governors Association announced this month will spend $20 million in gubernatorial races this year in states where the governor plays a role in the redistricting process. The goal was to achieve “fairer maps for voters around the country,” said Elisabeth Pearson, the DGA’s executive director, in a press release.
But Pearson said this week that the DGA isn’t seeking to elect Democrats to approve gerrymandered maps in the party’s favor, but rather as checks on GOP legislatures, in states where Republicans drew the state legislative maps and retain an advantage in those races.
“There is no potential scenario, even in an Democratic sweep in 2018, we’ll be in a position to have enough power to do the same thing [in 2021] as what Republicans have done,” Pearson said.
The Republican Governors Association did not immediately return a request for comment.
But what the Supreme Court may determine in the Maryland case — Benisek v. Lamone — is how far the parties can go in redrawing the maps after the next Census.
“In taking these two cases, it’s clear the Supreme Court wants to say something about partisan gerrymandering,” said Li. “And we don’t know what that is yet.”