WASHINGTON – An hour of Supreme Court arguments Wednesday shed little light on whether partisan gerrymandering can be so severe as to violate the minority party’s constitutional right to political association. But, if it can, the justices made clear Maryland’s 6th Congressional District would be the textbook case.
Maryland Solicitor General Steven M. Sullivan defended the redrawn, now-majority Democratic district in the western part of the state as competitive rather than partisan, adding that in any event. the determination of how much partisanship is too much is likely incalculable.
That argument, however, drew criticism from Justices Elena Kagan and Sonia Sotomayor, who cited what she called “damning” deposition testimony from former Maryland Gov. Martin O’Malley, a Democrat, that the district was redrawn to help his party, which controls the state legislature.
“Whatever you think is ‘too much,’ this case is too much,” Kagan said. “People were very upfront about what they were trying to do here.”
Sotomayor added that Republican voters challenging the redrawn district’s constitutionality “certainly have enough (evidence) to go to a jury on that question.”
Republican voters argue the 6th Congressional District violates the First Amendment right of GOP voters to political association because the Democratic-led General Assembly deliberately redrew the district to ensure the election of a Democrat and in “retaliation” of the district having elected a Republican.
A threshold question for the justices will be whether a district can be so heavily drawn in favor of one party to run afoul of the First Amendment freedom of political association. On that question, the justices appeared divided.
Justice Samuel A. Alito Jr., for example, said “you cannot take all considerations of partisan advantage out” of the redistricting process. Justice Neil M. Gorsuch wondered aloud how judges could ever determine whether an election victory was due to a politically gerrymandered district or simply because the voters favored one candidate over another without reference to party.
And Chief Justice John G. Roberts Jr. distinguished partisan from the always-suspect racial gerrymandering by noting that “a certain degree of partisanship is acceptable.”
But Justice Ruth Bader Ginsburg said the court should no more accept a gerrymandered district that is “max black” than one that is “max Democratic.” And Justice Stephen G. Breyer said just because setting a formula for calculating too much partisanship appears complex does not mean that one should not be made.
Such calculations are “complicated but not impossible,” Breyer said.
Attorney Michael B. Kimberly, pressing the Republican voters’ challenge, responded to the justices’ concerns about finding ways to quantify unconstitutional gerrymandering by noting mathematical calculations are already in place, albeit to ensure the majority party’s success in redrawn districts.
“If they (these computations) weren’t reliable, we wouldn’t see political gerrymandering at all,” said Kimberly, of Mayer Brown LLP in Washington.
Sullivan, the solicitor general, said the redrawn district passes constitutional muster on its face because the legislation that made it law makes no mention of a partisan intent and that statute was approved by Maryland voters in a referendum.
But that argument apparently failed to convince Justice Anthony M. Kennedy, a potential swing vote on a divided court.
“(So) if you hide the evidence of what you’re doing, you prevail,” Kennedy said.
The Supreme Court is expected to render its decision by the end of June in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.
Maryland Gov. Larry Hogan, a Republican, has broken with the state attorney general’s office in the Supreme Court case, having joined a brief in support of the Republican voters’ constitutional challenge. Hogan has called for the creation of an independent redistricting commission in Maryland, a legislative proposal that has died in the General Assembly in past years.
The General Assembly redrew the 6th District following the 2010 U.S. Census to include a significant swath of Democrat-rich Montgomery County, which the Republicans claim was a deliberate effort to dilute their vote from the state’s five western counties, thereby ensuring the election of a Democratic representative over the then-GOP incumbent. (The lawsuit initially challenged districts statewide but was amended to focus solely on the 6th District.)
U.S. Rep. Roscoe Bartlett, the Republican who had represented the district since 1993, lost his re-election bid to John Delaney, a Democrat, in 2012. Delaney handily won re-election in 2014 and 2016.
The justices are also considering a similar Wisconsin case that addresses whether GOP lawmakers in that state drew legislative districts so contrary to the state’s political breakdown that they violated the constitutional rights of Democratic voters. A decision in that case, Gill v. Whitford, is also expected by the summer.