The Supreme Court has agreed to hear Maryland’s gerrymandering case, as well as a similar case in North Carolina, in March. This news may be seen as a light at the end of the tunnel for those who want to end partisan gerrymandering that has essentially allowed politicians to pick the voters in their district, rather than voters choosing who is representing them in Congress.
Common Cause, a watchdog group with a stated mission of creating “open, honest and accountable government,” sued the North Carolina legislature over its remedial 2016 congressional map (adopted after an early map was struck down) as an unconstitutional gerrymander that favored Republicans. This past August, a three-judge panel issued an opinion in favor of the plaintiffs and ordered a new map, which was stayed pending Supreme Court review.
In Maryland, Attorney General Brian Frosh appealed to the high court after a panel of federal judges threw out the map for the state’s 6th Congressional District, with the judges opining that Democratic officials unconstitutionally drew the boundaries with the goal of reducing Republican influence and flipping the 6th District from red to blue.
Both parties are guilty of such shenanigans, but the Supreme Court over the years has struggled to rule on such cases. Most recently in June, the Maryland case in which Democrats gerrymandered the map and a Wisconsin case in which Republicans are guilty of the partisan boundaries, were sent back to the lower courts.
Chief Justice John Roberts wrote that finding a solution to political gerrymandering “has confounded the court for decades,” primarily because of the justices’ inability to determine “judicially discernible and manageable” standards, as the late Justice Antonin Scalia put it, as to when the practice goes to far, even if the justices and everyone else can see the maps are plainly rigged.
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The Supreme Court will hear arguments on both cases on the same day in March, a sign, perhaps, that the justices intend to tackle the issue once and for all.
“Taking the two cases side-by-side is going to give the court a broader range of arguments and facts on which to think about the issue, and illustrates well that this is not a partisan issue, it is a good-government issue,” Michael B. Kimberly, the attorney representing the plaintiffs in the Maryland case, told The Baltimore Sun.
Will the high court find enough evidence to make a definitive conclusion that both of these maps are unconstitutional? Probably not. Most likely, as the court has done in the past, it may hear the arguments but sidestep the matter returning both cases to the lower courts.
But the opposite is also a potential conclusion. Writing for The Atlantic, Richard L. Hasen, the chancellor’s professor of law and political science at the University of California, Irvine, opines the now firmly conservative-leaning court may reverse the lower courts’ decisions that gerrymandering violates the Constitution, and rule that federal courts “have no business deciding how much politics is too much politics when state legislatures draw district lines.”
It’s also possible, he writes, the high court could prevent independent commissions to draw congressional districts — like the one Gov. Larry Hogan has created to comply with the three-judge panel’s order to redraw the 6th District and one he hopes to create to draw future district maps — if a case challenging their constitutionality comes before the justices in the future.
We hope that the latter is not the direction the Supreme Court intends to take, as it would have a detrimental affect on our politics, and further alienate and disenfranchise voters.
For all Americans, the best-case scenario is that the high court rules both maps unconstitutional, ending partisan gerrymandering as we know it. Just don’t hold your breath waiting for it to happen.