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Weighing map warped by politics again, Supreme Court shows no consensus

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NEW YORK TIMES

Supreme Court justices including Neil Gorsuch, top, arrive for President Donald Trump’s State of the Union address at the Capitol in Washington on Jan. 30. For the second time this term, the Supreme Court heard arguments about whether voting maps can be so distorted by politics that they violate the Constitution.

WASHINGTON >> For the second time this term, the Supreme Court heard arguments today about whether voting maps can be so distorted by politics that they violate the Constitution.

As they had when an earlier case was argued in October, many of the justices agreed that partisan gerrymandering is a serious problem that disfigures democracy. But there was no indication today that they had come to an agreement about whether the courts can address the problem.

“It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering,” Justice Stephen Breyer said. “But is there a practical remedy that won’t get judges involved in dozens and dozens and dozens of very important political decisions?”

Justice Samuel Alito said that redistricting conducted by politicians was necessarily political. “Hasn’t this court said time and again you can’t take all consideration of partisan advantage out of districting?” he asked.

Were the Supreme Court to forbid taking account of politics in drawing voting maps, he said, “I really don’t see how any legislature will ever be able to redistrict.”

The justices largely agreed that the oddly shaped Maryland congressional district at issue, drawn by Democrats in the Legislature, was an extreme example of distasteful political gamesmanship.

“It doesn’t seem to have any internal logic,” Chief Justice John Roberts said of the district, which stretches from northwestern Maryland to the Washington suburbs. He added that the district had been redrawn in a way “that prefers one party over another.”

Justice Elena Kagan said it sometimes might be hard to tell when politics played too large a role, but she said that was not a problem here. “However much you think is too much,” she said, “this case is too much.”

But it was not at all clear that the court was prepared to say the Constitution may place limits on extreme partisan gerrymandering, where the party in power draws voting districts to give itself an outsize advantage in future elections.

The Supreme Court has never struck down a voting district as an unconstitutional partisan gerrymander. A ruling allowing such challenges could revolutionize U.S. politics.

Wednesday’s arguments provided little information about whether the justices are prepared to take that step. Indeed, if arguments in October in the earlier case, a Democratic challenge of a Republican map from Wisconsin, had heartened opponents of extreme partisan gerrymandering, Wednesday’s arguments in the Maryland case only served to confuse them.

Justice Anthony Kennedy, who probably holds the crucial vote in both cases, returned to a theme he had pursued in the arguments in the Wisconsin case, asking whether a law that required partisan gerrymandering in so many words would violate the Constitution.

Steven M. Sullivan, Maryland’s solicitor general, said it would.

Kennedy asked, “How is this case different?” Sullivan said the redistricting law did not expressly call for a partisan advantage.

Kennedy was not satisfied. “So if you hide the evidence of what you’re doing, then you’re going to prevail?” he asked.

The court’s surprise announcement in December that it would hear the second partisan gerrymandering case, Benisek v. Lamone, No. 17-333, led to much speculation about what the move meant for the challengers in the Wisconsin case, Gill v. Whitford, No. 16-1161. But Wednesday’s argument did almost nothing to clear up the mystery of why the justices decided to hear a second case.

If there was a hint about where the court was headed in the Wisconsin case, it came from Breyer, who suggested that the court schedule a new round of arguments in both cases, along with one from North Carolina, in the term that will start in October. His question suggested that at least some of the challengers could not demonstrate that they had suffered the sort of direct injury that gave them standing to sue.

“What would you think,” Breyer asked, “of taking the three cases and setting them for re-argument on the question of standing and there we’d have all three variations in front of us?” he asked a lawyer for the challengers, Michael B. Kimberly. But Breyer’s real audience seemed to be his colleagues, none of whom spoke up in support of the proposal.

Breyer, who seems ready to allow constitutional challenges based on partisan gerrymandering, probably would not have made the suggestion had his views prevailed when the justices took their preliminary vote in the Wisconsin case in October.

Several justices said the Maryland case was plagued by procedural and practical problems.

Justice Ruth Bader Ginsburg said there was little reason for the court to rule now because its decision would come too late to affect the 2018 elections.

“It’s much too late, even if you were successful, for there to be any change for the 2018 election,” Ginsburg told Kimberly. Kennedy seemed to agree. Roberts and Justice Sonia Sotomayor said the challengers had waited too long to file suit.

Kimberly, representing the plaintiffs, argued that Democratic state lawmakers there had redrawn a district in northwestern Maryland to retaliate against citizens who supported its longtime incumbent, Rep. Roscoe G. Bartlett, a Republican. That retaliation, he said, violated the First Amendment by diluting their voting power in a district that had been controlled by Republicans.

Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Rep. John Delaney, a Democrat, by a 21-point margin.

Several justices said the evidence of extreme partisan gerrymandering was strong.

“People were very upfront about what they were trying to do here, which was to create another Democratic district,” Kagan said. “And they did that.”

In the past, some justices have said the court should stay out of such political disputes. Others have said partisan gerrymanders may violate the Constitution.

Kennedy has taken a middle position, leaving the door to such challenges open a crack, though he has never voted to sustain one.

In 2004, he wrote in a concurring opinion on a gerrymandering case that he might consider a challenge if there were “a workable standard” to decide when such tactics crossed a constitutional line. But he said he had not seen such a standard.

In the Maryland case, a divided three-judge panel of the U.S. District Court in Maryland in August denied the challengers’ request for a preliminary injunction. In dissent, Judge Paul V. Niemeyer, who ordinarily sits on the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, wrote that partisan gerrymandering was a cancer on democracy.

“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy,” Niemeyer said. “Indeed, both Democrats and Republicans have decried it when wielded by their opponents but nonetheless continue to gerrymander in their own self-interest when given the opportunity.”

“The problem is cancerous,” he wrote, “undermining the fundamental tenets of our form of democracy.”

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