On March 26, 2019, the United States Supreme Court heard oral arguments in two pivotal gerrymandering cases that could either finally open the door to political gerrymandering claims or reject the validity of such claims entirely.

The first case, Rucho v. Common Cause, involves the congressional map for the state of North Carolina, drawn by the Republican-controlled state legislature for the second time in the past decade. Although the previous congressional map was struck down in 2016 for racial gerrymandering, the plaintiffs have argued that this time the map is unconstitutional because the districts were drawn to give Republican candidates a distinct partisan advantage.

Indeed, Republicans obtained 10 of the 13 congressional districts, or 76.92%, in the 2016 election, while only receiving 53.22% of the statewide vote. In 2018, the U.S. District Court for the Middle District of North Carolina invalidated the map, holding that the 2016 redistricting plan violated the equal protection clause, the First Amendment and Article I of the U.S. Constitution.

In the second case, Lamone v. Benisek, a group of Republican voters argue that one Democratic drawn congressional district in Maryland is also an unconstitutionally drawn political gerrymander. Benisek focuses specifically on Maryland's sixth congressional district, where, in the 2012 redistricting process, the Democrat-controlled legislature removed roughly 66,000 Republican voters and replaced them with nearly 24,000 Democratic voters. Under the new map, the Republican incumbent lost the 2012 election by almost 21%, after having comfortably won in 2010 under the old map by nearly 28%.

To achieve this, the legislature contorted the Sixth District, which had traditionally extended across Maryland’s northern border, to reach the Washington, D.C., suburbs of Gaithersburg and Germantown. In 2018, the U.S. District Court for the District of Maryland held that the redistricting violated the First Amendment, by infringing on the plaintiffs’ representational and associational rights based on their party affiliation and voting history.

In the past, the Supreme Court has struggled with how to appropriately handle claims for partisan gerrymandering. In 1986, the court held in Davis v. Bandemer that partisan gerrymandering claims were justiciable, although only a plurality of the court stated that partisan gerrymandering violated the equal protection clause. Notably, the plurality couldn’t agree on a standard for addressing these claims.

The high court took up the issue again in the 2004 case of Vieth v. Jubelirer. Vieth involved achallenge to the post-2000 redistricting of Pennsylvania’s congressional districts. The Supreme Court split badly in Vieth. In Justice Antonin Scalia’s plurality opinion, the four conservative justices held that partisan gerrymandering was a political question that was off limits to the courts, because there are no “judicially discernible and manageable standards” for gauging when mapdrawers went too far, effectively overturning the court’s decision in Bandemer.

Four other justices disagreed. They said it was proper for courts to intervene in partisan gerrymandering cases, and proposed various tests for determining when a partisan gerrymander had occurred. Falling between the two camps, Justice Anthony Kennedy affirmed that partisan gerrymandering is an issue courts can decide, but said none of the proposed standards would suffice.

Although Kennedy concurred in the conservatives' judgment, he refused to believe that the court should foreclose all relief for political gerrymandering, famously stating that just because “a workable standard for measuring a gerrymander’s burden on representational rights has not yet emerged does not mean that none will emerge in the future.” Kennedy also seemed to invite future plaintiffs to bring their claims under the First Amendment, saying that it may offer “a more prudential basis for judicial intervention in political gerrymandering cases.”

Last year, in Kennedy’s last year on the court, the court considered the most high-profile partisan gerrymandering case since Vieth — Gill v. Whitford. In an attempt to answer Kennedy’s invitation, the plaintiffs in Gill relied on a new constitutional test, the efficiency gap, to strike down Wisconsin’s post-2010 state legislative redistricting plan. The efficiency gap is a standard for measuring partisan gerrymanders that counts the number of votes each party “wastes” in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats.

Any vote cast for a losing candidate is considered a wasted vote, as are any votes for a winning candidate in excess of the number needed to win. Although the plaintiffs in Gill prevailed in the lower court, the Supreme Court punted on the substantive constitutional questions in Gill, and remanded the case back to the lower court on standing grounds. The court held that the plaintiffs’ claim that Wisconsin Democrats as a whole had suffered a statewide injury failed to show an injury suffered by individual voters, a necessary element for standing. The court also took up the Benisek case last year, but again punted on considering the merits of the constitutional issue.

With the retirement of Kennedy from the Supreme Court, many observers believed the issue of partisan gerrymandering would not again reach the high court for several years. This belief changed when the court granted cert to hear Rucho. The North Carolina case is a test case of sorts for the lengths a legislature can go to draw maps purely for partisan advantage.

The factual record demonstrates the unabashed partisan intent of the North Carolina legislature to draw a congressional map advantaging Republicans. Indeed, the representative responsible for drawing the new maps remarked that he drew the maps to advantage Republican candidates because he thought “electing Republicans is better than electing Democrats.” He also declared that the only reason he drew the plan to elect Republicans to 10 out of 13 congressional districts was because he could not draw a map that would elect Republicans to 11 out of 13 congressional districts.

At the arguments before the Supreme Court, the court’s conservative bloc signaled skepticism towards judicial intervention, and probed the map’s challengers for a standard that it could apply nationwide. In so doing, they repeatedly questioned the challengers about whether their remedies would usher in proportional representation, a standard rejected by former justices Sandra Day O’Connor and Kennedy in numerous opinions.

The court’s liberal bloc was more supportive of intervention. Justice Brett Kavanaugh emerged as a potential swing vote on the issue, as he seemed to seriously question whether the equal protection clause mandated some type of judicial intervention. At the same time, he pondered whether the issue might be too “big of a lift” for the court, and continually challenged the litigants on whether their proposed standard would create a constitutional requirement for proportional representation.

Although much of the focus on partisan gerrymandering has revolved around congressional maps, the court’s decisions in Rucho and Benisek will likely impact state legislative races in a much more meaningful fashion. Currently, 30 states allow their legislatures to draw the maps for state legislative races, meaning the legislators are able to weigh in on how their own districts will be drawn. Moreover, an effective political gerrymander by the majority party all but guarantees that the same party will be in power 10 years later for the next round of redistricting.

Both the Republican and Democratic parties have recently begun to recognize the importance of securing a majority in state legislatures, given the level of political entrenchment that can be achieved through partisan gerrymandering. A decision from the Supreme Court prohibiting partisan gerrymandering could create an immediate impact at state capitols throughout the country. In addition, local races that hold partisan elections could also be impacted, inviting scrutiny to the redistricting process applied at the city and county level.

In the past, Kennedy’s unwillingness to concede that no judicially manageable standard could ever be created appeared to be the only obstacle preventing the Supreme Court from outright rejecting partisan gerrymandering claims. Perhaps Kennedy’s retirement finally paves the way for clear guidance regarding the viability of these claims. The oral arguments in Rucho and Benisek depict a court still sharply divided on the justiciability of partisan gerrymandering claims and the best constitutional test, if any, to apply to reviewing gerrymandered maps.

Will the court punt on the issue again? Will the court announce a standard that stops the most extreme partisan gerrymanders? Are Justice Roberts and Kavanaugh actually in play? The court’s decision is expected at the end of its term in June.

Republished with permission. This article, "High Court May Finally Settle Partisan Gerrymandering Issue," first appeared in Law360 on April 8, 2019.