Before the current proposals by the Democratic party, together with the media, to change American government and have American society be solely urban by, for example, abolishing both the Electoral College and the states’ equal representation in the Senate, packing and establishing term limits for the Supreme Court, and lowering the voting age, there has been the decades-old effort to have the federal judiciary take over the drawing of voting districts from state legislatures and thus eliminate “gerrymandering.”

According to Article 1, Section 4, of the Constitution, “the Times, Places and Manner of holding Elections for Senators and Representatives” shall be “prescribed in each State by the Legislature thereof.” The Constitution says nothing about authority over the redistricting of state legislatures, but, likewise, it has always been done by the state legislatures. Nevertheless, the Supreme Court has overseen reapportionment and voting rights since the passage of the Voting Right Acts in 1965 and its own decisions in Baker v. Carr (1962) (redistricting is a judicial, not a political question), Westberry v. Sanders (1964) (one-person, one-vote in federal House districts), and Reynolds v. Sims (1964), of which Reynolds, in ruling that state senates as well as state houses, must have equal populations, had the additional definitive effect of repudiating the inaugural and longstanding American principle that territory was also a significant element of the American polity. Thus, today, that principle abides only with respect to the equal representation of the states in the United States Senate.

The first effort to constitutionalize gerrymandering was considered by the Supreme Court in the 1986 case of Davis v. Bandemer (1986). By a 7-2 vote, the Court turned back an Equal Protection suit by Indiana Democrats against the makeup of the Republican-controlled state legislature but left open the possibility of a future case of “discriminatory vote dilution.” In Veith v. Jubelirer (2004), the Court rejected an Equal Protection claim by Pennsylvania Democrats on the makeup of federal congressional districts and repudiated, but only by a four-man plurality, what had left open in Bandemer. The Court held that there was “no constitutionally discernible standard” for adjudicating redistricting by state legislatures. Nonetheless, Justice Anthony Kennedy, the fifth vote for the Court’s decision, went on to say that “new methods of analysis,” that is, statistical and social-science methods, as well as a different constitutional basis, the First Amendment in addition to the Fourteenth, could serve as the basis for future cases.

Last year, the Court handed down two decisions on gerrymandering. In Gill v. Whitford, the Court, in an opinion by Justice John Roberts, ruled unanimously that Wisconsin Democrats did not have standing to challenge the state-wide redistricting plan for the state legislature drawn up by the Republican-controlled legislature because an individual voter has “standing to assert only that his own district has been so gerrymandered.” And in Benesik v. Lamone, concerning a single federal congressional district in Maryland, the Court’s first version of the Lamone v. Benisek case, the Court issued an unsigned per curiam decision remanding the case pending the decision in Gill.

Ove the last 30 years, an “efficiency gap” has been formulated to deal with both “packing” and “cracking” legislative districts by comparing each party’s total statewide votes in an election to the number of state or federal legislative seats gained by each party in the election. Thus, for example, in a certain election a political party may have won 60 percent of the seats in the state legislature but only received 52 percent of the votes statewide. All contemporary challenges to gerrymandering are based on the proposition that social-science and statistical analyses can be used to draw district lines that tend to be neutral and without discriminatory partisanship. The question today is whether the “gap” means that seats in a legislature must be based on a strictly proportional representation of the two parties. In past cases, even those lawyers seeking to have the courts overturn particular gerrymanders have steered clear of suggesting that the Constitution requires that the results of elections reflect the proportions of the two political parties’ in a state’s population.

In the latest case, the oral arguments in both cases were dominated by the issue of proportional representation and by the question of whether any or how much political partisanship is constitutionally permissible. In Rucho, the lower court had ruled that the North Carolina statewide redistricting plan, put into effect by the Republican-controlled legislature, was an unconstitutional gerrymander of twelve of the thirteen congressional districts. Counsel for Common Cause and the League of Women voters defended the district court’s decision.

Justice Neil Gorsuch repeatedly mentioned that there are a growing number of states that have on their own addressed partisan gerrymandering by establishing bipartisan commissions, as well as public referenda, to draw district boundaries. Justice Brett Kavanaugh joined Gorsuch in this point and added that state supreme courts have also been invoked to remedy gerrymandering. So, why should the Supreme Court nationalize and constitutionalize the issue, they essentially asked? As part of their response, counsel made it clear who the geographic targets of Common Cause and the League of Women Voters are, for there are only “a very small number of states” that are “east of the Mississippi” who have so acted, and “the vast majority of states east of the Mississippi, including specifically North Carolina, do not have citizen initiatives.”

Chief Justice Roberts, looking for “a principle that we’re going to be able to apply to other cases,” asked whether there was “any element of partisanship” that was permissible in the drawing of districts. And Gorsuch, Kavanaugh, and Justice Samuel Alito all asserted that the only possible and clear basis for assembling the evidence for discriminatory intent was proportional representation. Although denying that he wanted to “dictate electoral outcomes,” Common Cause’s counsel somewhat conceded the point.

The League of Women Voter’s counsel was very emphatic about the statistical and even scientific validity of the reports of experts that the North Carolina federal district court had used. When Justice Gorsuch asked her about the efficiency gap, she replied that “social science is just an evidentiary tool,” but went on, nonetheless, to explain how “simulations” and “U curves” and “the Bell curve of expected and reasonable map allocations of representation” will make it possible to eliminate gerrymandering. Overall, then, she was announcing that the “methods” that Justice Kenney had hoped for in Veith had arrived.

The issues were much the same in the oral arguments in the Lamone case involving a single Maryland congressional district that the Democrat-controlled legislature had reconfigured from semi-rural to a suburb of Washington D.C., and that the district court had found unconstitutional.

The case avoided the broad standing problem of Gill from last year in that it is based on a single congressional district. At oral arguments, the plaintiffs’ counsel, under sharp questioning, ended up emphasizing that the facts of the case stuck out as “extreme partisan gerrymandering” and that the Court could issue a limited holding based on that fact and thereby avoid all the questions and qualifications about a national, applicable-to-all-cases standard for partisan gerrymandering.

Justice Alito questioned the suitability of using the First Amendment, because that would permit state legislatures to knowingly and consciously draw maps based on speech, votes being regarded as speech. Would that not be government engaging in the “regulation of speech,” he asked.

In addressing counsel’s point that discriminatory “intent” is the first element of proof of gerrymandering, Justice Elena Kagan remarked that in both cases, the party in control of the legislature, Republicans in North Carolina and Democrats in Maryland, had openly “bragged” about the partisan motivation for the maps. So, what if legislators are more discreet in future cases, thus eliminating an essential element of proof of unconstitutional gerrymandering? What standards could a court use to decide? The lawyer answered that intent would have to be inferred. But then Kagan and Roberts and Kavanaugh asked how much and what kind of evidence would be needed to prove the inference. Whereupon those justices and the plaintiff’s lawyer essentially concurred that the standard would have to be proportional representation.

Overall, serious doubts or at least concessions, direct and implied, by a cross-section of the justices and even by some of the lawyers charging constitutional violations, came up in the two hours of oral arguments about how gerrymandering could be constitutionalized and under what partisan political facts it should be.