By Kevin Daley
The U.S. Supreme Court Wednesday will hear a challenge to congressional district lines in Maryland, which were intentionally redrawn to give a Democratic challenger an advantage over the veteran Republican incumbent.
Wednesday’s arguments could furnish an attractive solution to so-called partisan gerrymanders, at a moment when courts feel emboldened to stop politically driven redistricting.
The case arose after the 2010 census, when the Democratic state legislature created a new district map that ensured former GOP Rep. Roscoe Bartlett would lose in the 2012 elections. Though west Maryland voters returned Bartlett to Congress ten consecutive times, the new lines incorporated portions of the Washington, D.C., suburbs, adding tens of thousands of Democrats to his district.
Bartlett lost his bid for reelection in 2012 and withdrew to a survivalist compound in West Virginia. His successor, Democratic Rep. John Delaney, has already announced plans to challenge President Donald Trump in 2020.
As in other cases involving partisan gerrymanders, Democrats were perfectly forthright about their motives. Former Maryland Gov. Martin O’Malley, a Democrat, gave a deposition during the litigation in which he volunteered that marginalizing Republicans was one of the objectives of the redistricting process.
“Yes, among other considerations,” he replied, when asked if his goal was to draw lines favorable to Democrats.
Elsewhere in the deposition, he said partisan line-drawing reflects the will of the majority of voters in a given state.
“[I]f there were a Republican governor, he or she would be drawing those borders in a way that was more advantageous to the Republican Party, and, if we had a Democratic governor, [they] would be drawing those districts in a way that was more advantageous to our party,” he said. “And that’s what I did.”
Republicans facing gerrymandering challenges in other states have been similarly candid.
The case is the second of its kind this term. The justices heard a challenge to Wisconsin’s state legislature map in October 2017, organized by Democrats who say the current lines disenfranchise liberal voters. Though Republicans and Democrats run evenly in the state, the GOP has a 60-seat majority in the 99-seat assembly.
The Maryland case is different from the Wisconsin case in a key respect. Where Wisconsin Democrats are challenging the entire legislative map, Maryland Republicans are challenging a single district. That distinction could help the justices resolve a problem that has divided the court for decades.
In its most recent gerrymandering decision, a 2004 case called Vieth v. Jubelirer, five justices — including Justice Anthony Kennedy — said they believe courts should police extreme partisan gerrymanders that marginalize wide swaths of voters.
Kennedy qualified his decision, however, explaining that courts should not intervene until they identify clear, manageable standards for assessing a map’s propriety. Politics, he noted, will always drive redistricting to a certain extent. What judges need is a simple test for determining when politics was used excessively.
In the Maryland case, plaintiffs offer a solution. They say courts should evaluate whether a gerrymander to a particular district burdens those citizens in retaliation for past voting patterns. In this case, they say Democrats in the state legislature reconfigured the lines to ensure that Republicans in western Maryland could not elect any GOP candidate as a punishment for their support of Bartlett.
The argument seems well tailored to conservatives like Chief Justice John Roberts and Justice Samuel Alito. In the Wisconsin case, Democrats said courts should use a statistical metric called the efficiency gap to measure political influence in redistricting. During the October arguments, Roberts seemed dubious of judicial reliance on social science methodologies to resolve such disputes, while Alito argued the harm inflicted on Democratic voters is too vague and attenuated for a lawsuit to proceed.
The Maryland solution does not require judges to use formulas, and the injuries alleged are inflicted for a specific purpose on a specific group of people in a specific place.
This would also ensure that partisan gerrymandering cases correspond to decisions about racially driven redistricting. Courts permit challenges to district lines that pack minority voters into single districts, or distribute them across districts to dilute their influence. However, such lawsuits can only be brought on a district-by-district basis.
In rebuttal, the state warns the standard plaintiffs propose would cripple redistricting, which is inevitably infected by politicking.
“The plaintiffs’ proposed standard threatens to render any partisan motive fatal to redistricting—something that this Court has already rejected,” Democratic officials wrote in their brief to the court.
A decision in the case, Benisek v. Lamone, is expected by June.