Supreme Court takes on Democrats and Republicans over one-sided maps

Richard Wolf | USA TODAY

WASHINGTON – The Supreme Court will hear evidence this week that Democrats try to game the political system with the same zeal employed by Republicans. They just don't have as many opportunities.

The challenge mounted by opponents of Maryland's congressional district lines will give the court a second opportunity within six months to find a blatantly partisan election map unconstitutional — something it has never done before.

Across the nation, hundreds of members of Congress and thousands of state legislators are elected in districts drawn to favor the party that controls state government. That has largely favored Republicans during the past decade, as the justices heard in October when confronted by Wisconsin's partisan artistry.

The lines in some major states are so one-sided that Democrats would need a landslide in November to win control of the House of Representatives, a new report by the Brennan Center for Justice at NYU School of Law estimates. In Ohio, Michigan and North Carolina, where Republicans control a combined 31 of 43 seats in Congress, the report says Democrats would need to win the statewide vote to add any more House seats.

The case being heard Wednesday will give the high court a chance to see how Democrats designed Maryland's map with similar strong-arm tactics. That could help assuage Chief Justice John Roberts' concern that appearing to favor one party over another would affect the court's "status and integrity" in the eyes of average Americans.

By focusing on partisan line-drawing in states controlled by Democrats as well as Republicans, "the Supreme Court can say partisan gerrymandering is wrong whether it's done by Democrats or Republicans, and this is why we need to rein it in," says Kathay Feng, national redistricting director for Common Cause.

The Maryland map in question gives Democrats a virtual lock on seven of eight seats in the House of Representatives. The Wisconsin map debated last fall has left Republicans with 63 of 99 seats in the lower house of an otherwise politically balanced state.

Maryland and Wisconsin are not alone in their political favoritism, however, and therein lies the rub for the Supreme Court. A decision striking down one or both maps could threaten equally partisan state and federal district lines from Texas to Massachusetts.

“Any win by the plaintiffs in either of these cases is going to trigger more litigation,” says Dale Ho, director of voting rights at the American Civil Liberties Union. Such a victory, he says, could range from "significant" to "revolutionary."

Moving voters

Already in American politics, presidents are chosen not by popular vote but the electoral votes of each state. U.S. senators are not apportioned by population but equally among the states, giving Delaware as many as California.

The House of Representatives and state legislatures are intended to be more democratic. But as state legislators improve their ability to pick voters with sophisticated data-mining tools — rather than voters picking the legislators — they become less democratic by the decade.

That isn't the case everywhere. Some legislatures are split between Republicans and Democrats, forcing compromise. Some states let independent or bipartisan commissions draw the lines. In still others, courts have imposed them — most recently in Pennsylvania, where the state Supreme Court struck down maps that have helped Republicans win 13 of 18 seats in Congress.

But in states such as Ohio, Michigan, Indiana and a large swath of the South from Virginia to Texas, Republicans set the rules. Maryland is among a few states, along with Illinois and Massachusetts, where Democrats draw the lines.

What Maryland Democrats did after the 2010 Census was devise a way to give their party a 7-1 edge in Congress. They did it by moving tens of thousands of Republicans out of the 6th Congressional District, which borders West Virginia and western Pennsylvania, and replacing them with tens of thousands of Democrats from the suburbs of Washington, D.C.

The district's conservative Republican congressman, Roscoe Bartlett, went from winning by 28 percentage points in 2010 to losing by 21 percentage points in 2012. The new congressman, Democrat John Delaney, already has declared himself a candidate for president in 2020.

The Brennan Center report illustrates how well Maryland Democrats gamed the system. For Republicans to win a second House seat, or 25% of the eight-seat delegation, it estimates they would have to win 45% of the statewide vote.

"What happened in Maryland’s 6th district in 2011 — and what is sure to happen all over the nation in 2021 absent this court’s intervention — is a clear violation of the First Amendment, which forbids states from disfavoring citizens on the basis of their political views," the challengers' attorney, Michael Kimberly, said in court papers.

Challengers to Wisconsin's lines told the court in October that the GOP-drawn lines violated their constitutional rights to equal protection. But rather than decide the case quickly, the justices opted to hear the Maryland case as well.

Since then, courts in North Carolina and Pennsylvania have struck down Republican-drawn maps. The North Carolina decision was blocked while the Supreme Court cases continue. But in Pennsylvania, a state court redrew the lines for 2018, and the justices refused to intervene.

The other cases — in Wisconsin, Maryland, North Carolina, Texas and elsewhere — are not likely to change district lines this year. But final decisions striking down political maps would alter the playing field for 2020 and affect the redrawing of lines in many more states in 2021 and thereafter.

'Traditional America'

Much of the national attention over partisan line-drawing has focused on the Wisconsin case, which was seen for most of last year as the best opportunity for challengers. The Supreme Court appeared divided during oral argument in October, with Justice Anthony Kennedy holding the key vote.

What makes the Maryland case different — beyond Democrats' control of the maps — is that it focuses on one district rather than statewide and is based on a separate section of the Constitution. Both differences could be attractive to Kennedy.

Focusing on one district allows the challengers to show they were directly affected, which makes it less likely that the justices will throw the case out. But it also raises the specter of additional lawsuits from within states — something the justices likely want to avoid.

“There are going to be dozens of districts that could be challenged under this standard,” says Jason Torchinsky, a lawyer advising Republicans on redistricting issues who defends the existing lines.

The voters challenging the makeup of the 6th District argue that their First Amendment rights were violated based on their past votes for Republican candidates — a form of retaliation.

"This is the approach that Justice Kennedy indicated that he had interest in" when the court last heard a partisan gerrymandering case in 2004, Kimberly says.

Defenders of the existing lines contend it is impossible to set a standard for how much politics is too much.

"Although the plaintiffs purport to leave room for 'permissible' partisanship and a 'de minimis' effect on their voting strength, they do not define what that means, thereby leaving it for courts to assess on some indeterminate basis," the state's lawyers said in court papers.

The Maryland case won't be the high court's last taste of political gamesmanship this term. Next month, the justices will hear two cases from Texas challenging the use of race in drawing congressional and state legislative lines.

The Wisconsin, Maryland and Texas cases will be decided by the end of June.

Maryland: Supreme Court to hear second case challenging election districts

Pennsylvania: Political maps under fire as Supreme Court case on tailor-made districts looms

Wisconsin: Analysis: Supreme Court debates politics, and Kennedy's silence speaks volumes