An attorney for a group of Maryland Republicans urged the U.S. Supreme Court on Tuesday to end the practice of drawing sharply partisan congressional districts, but some justices seemed reluctant to venture into an area that has long been the domain of states.
The court heard oral arguments in cases from Maryland and North Carolina that offer the justices the opportunity to address how far mapmakers of either party can go in pursuit of political advantage.
Appearing outside the court before and after the arguments, Maryland Gov. Larry Hogan and former California Gov. Arnold Schwarzenegger urged the high court to end the practice known as “gerrymandering,” which Hogan called “one of the biggest problems we have in America.”
Hogan attended the more than two hours of arguments after joining Schwarzenegger earlier this month in filing a “friend of the court” brief.
After listening to the case, Hogan said gerrymandering is “one of the reasons why we have so much divisiveness and dysfunction here in Washington. Them taking action can make a tremendous difference in what the politics of our nation looks like.”
But some in the court’s conservative majority questioned whether — and how — the judiciary should fashion a remedy.
“Why should we wade into this?” Justice Neil Gorusch asked.
Gorsuch and Justice Brett Kavanaugh pointed out that voters in some states — and state courts in others — already have imposed limits on how far politicians can go in designing districts that maximize one party's advantage.
The justices “were obviously trying to decide themselves what were proper standards, what were proper considerations,” said former Maryland Secretary of State John Willis, who attended the arguments after providing historical information to the state about the case. “Whatever the result, the real question for the court is, ‘Should the judiciary get engaged more than it has previously?’”
The Maryland case centers on the configuration of the 6th congressional district, which stretches from the liberal Washington suburbs of Montgomery County to conservative western Maryland. To government watchdog groups, the meandering district is an example of how one state party — in this case, Democrats — used redistricting to its advantage by reconfiguring a district once dominated by Republicans.
In November, a three-judge federal court panel ruled that the state unconstitutionally drew the boundary lines after the 2010 census to benefit Democrats. That panel banned the map from being used in future elections.
“Our point is that we are entitled to a redrawing of the 6th congressional district in a manner that does not select a map that disfavors them because of their political views,” attorney Michael Kimberly told the justices as he represented seven Republican voters.
Justice Elena Kagan seemed to agree that the 6th District map warranted a hard look.
She said mapmakers flipped the district’s composition “from 47 percent Republicans and 36 percent Democrats to, instead, 45 percent Democrats and 34 percent Republicans, effectively ensuring that Republicans will never win this seat again.”
“How is that not excessive?” Kagan asked.
Maryland Solicitor General Steven M. Sullivan replied that there were also geographic considerations in crafting the district map “that had nothing to do with partisan politics.”
In appealing the lower court ruling, Maryland Attorney General Brian Frosh said he was not defending gerrymandering, but rather seeking Supreme Court guidance on the standards Maryland leaders need to apply when they redraw the map. Frosh’s office said in a brief that the lower court “failed to arrive at a manageable standard that can be applied fairly and predictably, in this or any future case.”
Leading Maryland Democrats have declined to embrace a gerrymandering "fix" favored by government watchdog groups and Hogan: a neutral commission to redraw the lines.
Analysts say that position leaves state Democrats open to criticism that the party is clinging to the old system in Maryland for fear of ceding political advantage
"One of the oldest games in politics is saying one thing and doing another," said Larry Sabato, director of the University of Virginia’s Center for Politics. "This is a classic example. Legislators claim to be for a nonpartisan system of redistricting, but somehow it never happens in many places."
Hogan used Tuesday’s arguments to advocate for a nonpartisan commission.
“We’ve been pushing for a nonpartisan redistricting commission, and our legislature has refused for four years in a row to even bring this up on the floor of our legislature,” the governor said. “We have one week in our legislative session.”
The 2019 legislative session ends April 8.
“Without that (legislative) action, the only thing we can do is rely on the court to take this action,” Hogan said.
U.S. Rep. David Trone, a Democrat who holds Maryland’s 6th District seat, filed a motion in December in the case. He disagreed with the lower court’s ruling and said a national solution to gerrymandering is required.
“The elimination of partisan gerrymandering is a desirable goal, but only Congress can ensure that the remedy applies uniformly throughout the nation,” the brief said.
Hogan and Schwarzenegger, a Republican like Hogan, headlined a pre-argument rally in front of the court that was attended by members of Common Cause and the League of Women Voters. Demonstrators carried signs saying “Let Every Vote Count” and “End Gerrymandering Now.”
“Are we going to terminate gerrymandering?” Hogan said during the rally on a brisk morning, referring to Schwarzenegger who played the cyborg character of “The Terminator” in a series of science fiction movies.
The cases at the high court mark the second time in consecutive terms the justices will see if they can set limits on drawing districts for partisan gain.
Democrats and Republicans eagerly await the outcome of the Maryland and North Carolina cases because a new round of redistricting will follow the 2020 census. A Supreme Court decision could help shape the makeup of Congress and state legislatures over the next decade.
Complaints about partisan gerrymandering almost always arise when one party controls the redistricting process and has the ability to maximize the seats it holds in a state legislature or its state's congressional delegation.
That's what happened in North Carolina, where Democrats hold only three of 13 congressional districts in a state that tends to have closely decided statewide elections.
In Maryland, Democrats who controlled redistricting in 2011 wanted to increase their 6-2 edge in congressional seats. The map they drew flipped to Democrats the 6th District where a Republican incumbent served for 20 years.
Lower courts in both states struck down the districts as unconstitutionally partisan.
Decisions in Rucho v. Common Cause, 18-422, and Lamone v. Benisek, 18-726, are expected by late June.
The Associated Press contributed to this article.