The Supreme Court appeared sharply divided on the question of whether there's any limit on what the courts can impose on partisan redistricting, also known as gerrymandering, with Justice Brett Kavanaugh, the newest member of the court, appearing at least somewhat conflicted.
"I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy," Kavanaugh told the lawyers arguing the case, "and I'm not going to dispute that."
On Tuesday, the court considered challenges to congressional district maps in North Carolina, drawn by Republicans, and in Maryland, drawn by Democrats.
The question of how political boundaries are drawn has taken on increasing importance for both parties over the past decade.
After the 2010 midterms, Republicans used their control of many state legislatures to draw favorable congressional maps for the GOP. An analysis this month by the Associated Press found that Republicans very likely won about 16 more House seats last fall than they would have been expected to based on their share of the vote owing to those lines. Still, Democrats did win control of the House.
One of the House Democrats' high-profile pieces of legislation would require states to use independent redistricting commissions for congressional districts.
Kavanaugh, a Republican who lives in Maryland, was active in questioning and seemed to show some openness to the idea that drawing district lines for partisan advantage is a genuine problem.
"Isn't proportional representation a judicially manageable standard?" Kavanaugh asked of Paul Clement, the prominent conservative attorney defending Republican redistricting in North Carolina.
"Well, it's — it's — it's a difficult standard," Clement responded. "It would require answering some questions about where its baseline — what elections do you get the baselines from, but it could be manageable."
Kavanaugh's next question: "Why can't the Equal Protection Clause be interpreted to require something resembling proportional representation?"
Clement noted that the framers of the Constitution gave state legislatures the power to draw districts.
Whether Kavanaugh is actually a swing vote is anyone's guess. He replaced retired Justice Anthony Kennedy, who truly was a swing vote on the issue of partisan gerrymandering.
Kavanaugh could have been playing devil's advocate, as justices are sometimes prone to do; he could be simply unwilling to close the door immediately, in his first court term, on an issue he seems to recognize is a genuine problem; or he's actually interested in finding some limits to partisan gerrymandering.
Kavanaugh also asked probing questions of attorneys arguing against the way the state drew the districts. Making the case against North Carolina was lawyer Emmet Bondurant, who opened his argument with this: "This case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this court since the one-person/one-vote cases."
Bondurant, 82, happened to argue the Supreme Court case that established that congressional districts need to contain the same number of people in 1964 — when he was 26.
North Carolina's map was struck down by a federal court in 2011, because it determined the map was gerrymandered on the basis of race, which is not allowed. So the state's GOP Legislature approved almost the same map, this time members said, on the basis of political affiliation so as to not be viewed as racially motivated.
Bondurant argued that the North Carolina Legislature's defense is, well, indefensible.
"They take the position that no matter how predominant the intent," Bondurant said, "no matter how extreme the effects, there are absolutely no constitutional limitations on partisan gerrymander."
In other words, the North Carolina Legislature's map is so openly — and extremely — political, Bondurant argued, that the state's Republicans are essentially saying there are no limits to partisanship when it comes to redistricting.
Kavanaugh seized on Bondurant's use of the word extreme — and pressed him on what he sees as a potential limit.
"When you use the word," Kavanaugh said, "when you use the word 'extreme,' that implies a baseline. Extreme compared to what?"
"In this case, it is extreme in comparison to any statistical application of neutral redistricting principles in the context of the political geography of North Carolina," Bondurant replied.
He cited randomized maps drawn by Jowei Chen, a political science professor and election maps expert at the University of Michigan, and noted that North Carolina's gerrymander was "not the result of chance. You can only achieve it by making partisan advantage the predominant motivation."
The justices, though, continued to press Bondurant for a standard that could be applied broadly. Conservative Justice Neil Gorsuch also brought up referendums for independent commissions, which some states have approved, as an alternative.
But Bondurant noted that "the vast majority of states east of the Mississippi, including specifically North Carolina, do not have citizen initiative." And that state legislatures have to ratify those ballot initiatives, so "that is not an effective remedy," he noted.
Republican Gov. Larry Hogan, for example, has tried and failed four times to bring such an initiative in Maryland, where Democrats have controlled how district lines are drawn.
Bondurant argued for the use of statistical models and mapping that results of them to find a line for fair maps.
Justice Sonia Sotomayor noted, "[T]he reality is that with all statistical models — and we spend our lives based on them, insurance is paid on statistical models, health insurance premiums are based on statistical models."
Even nuclear power plants, she noted, are based on statistical models.
Justice Stephen Breyer hit on a key problem, however, with how the justices would likely try to make a decision.
"[T]he problem I think your side throughout this morning has to deal with," Breyer said, "is from this side of the bench, to some people looking at the prior cases, there is a great concern that unless you have a very clear standard, you will turn many, many elections in the United States over to the judges."
And if there's one thing Supreme Court justices want to do, it is stay out of politics.
Clement, understanding this, put it this way to the justices: "[O]nce you get into the political thicket, you will not get out, and you will tarnish the image of this court for the other cases where it needs that reputation for independence, so people can understand the fundamental difference between judging and all other politics."
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Today, Justice Brett Kavanaugh seemed conflicted on whether the Supreme Court should place limits on partisan gerrymandering. That's the practice of drawing lines for districts to give one party a political advantage. Kavanaugh's vote could decide the case, as NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Kavanaugh, on most subjects, falls firmly into the conservative judicial camp. And he may well end up there, but today he was either playing devil's advocate or he's genuinely open to the court putting some brakes on the practice of extreme partisan gerrymandering. It's a practice that's grown exponentially in modern times, now that computers can generate tens of thousands of alternative redistricting maps with the push of a button. In North Carolina, a state divided roughly equally between Democratic and Republican voters, Republicans drew districts to give themselves the maximum partisan advantage. As David Lewis, the Republican chair of the state legislative redistricting committee put it...
(SOUNDBITE OF ARCHIVED RECORDING)
DAVID LEWIS: I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats.
TOTENBERG: In overwhelmingly Democratic Maryland, the Democrats did the same thing, openly manipulating the line drawing to eliminate one of the two safe Republican congressional seats. On the steps of the Supreme Court today, former California governor Arnold Schwarzenegger said that until his state enacted reforms, gerrymandering was so entrenched that over 10 years and 265 separate elections, party control switched just once.
ARNOLD SCHWARZENEGGER: There's more change over in the Politburo - in a former Politburo of the Soviet Union - than there was in California.
TOTENBERG: And Maryland's Republican governor, Larry Hogan, lamented that under his state's laws and the laws of most other states, such referenda are impossible.
LARRY HOGAN: Unlike California, we can't bring it to a referendum. We don't have that power in Maryland.
TOTENBERG: Inside the Supreme Court chamber, the questioning was predictable, with the court's liberals looking for a way to at least police the outliers in partisan gerrymandering and the conservatives generally uninterested - all except Kavanaugh. Perhaps it was all for show or because he hasn't handled a gerrymandering case before, but Kavanaugh's questions at least suggested an openness to the idea of the court getting involved.
Addressing one of the lawyers challenging the North Carolina redistricting, Kavanaugh said, I took some of your argument in the briefs to be that extreme partisan gerrymandering is a real problem for our democracy, and I'm not going to dispute that. But Kavanaugh went on to note that voters in more than a dozen states have, by referenda, adopted measures like California's, giving redistricting power to an independent commission. Since there's a fair amount of activity in this area going on in the states, he said, shouldn't the court stay its hand? No, replied lawyer Allison Riggs, representing the North Carolina challengers. These voters have zero power to put a referendum on the ballot, she said.
Indeed, most of the states east of the Mississippi have laws like those in North Carolina and Maryland that bar such ballot initiatives, making it all but impossible to change the system. Justice Gorsuch interjected to worry about getting the Supreme Court involved in policing such partisan decisions and what that might do to the court's reputation for political independence. While the reputation of the court for independence is important, replied Riggs, understand that on the facts of this case, the reputational risk to the court of doing something is much less than the reputational risk of doing nothing. This is not a problem that can correct itself, she added. The partisan bias in North Carolina is so baked in that no matter how large the Democratic turnout, it cannot surmount the way the district lines were drawn to concentrate the Democrats in three districts and dilute them elsewhere to preserve a maximum GOP 10-to-3 advantage.
But Paul Clement, representing the North Carolina GOP, also had a warning for the justices. Once you get into the political thicket, you will not get out, and you will tarnish the image of this court. Justice Ginsburg - that was exactly the same argument we heard before the one person, one vote decision decades ago. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.