The Supreme Court sidestepped a potentially historic ruling Monday that would have stopped states from drawing election maps intended to help one political party dominate the other, but the issue could return as soon as next term.
The justices found procedural faults with challenges brought by Democratic voters in Wisconsin and Republicans in Maryland. That could open the door for a third case from North Carolina to reach the court next term.
In a case that’s been pending since early October, the justices said challengers to the design of 99 state Assembly districts in Wisconsin could not tackle the whole map at once but must target specific districts. Rather than dismissing the case, however, they agreed to give the challengers another chance to prove their case in lower courts.
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“We lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others,” Chief Justice John Roberts wrote for the court.
But in a concurring opinion, the court’s four liberal justices laid out a road map for a challenge to reach the Supreme Court.
“Courts — and in particular this court — will again be called on to redress extreme partisan gerrymanders,” Justice Elena Kagan wrote. “I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.”
In the Maryland case, the court said challengers to congressional lines giving Democrats seven of eight seats in the House of Representatives waited six years to bring their claim and had not shown the potential for irreparable harm, because any ruling would not affect this fall’s elections. That case, too, can continue in lower courts.
The decisions therefore won’t have major implications for other states — including North Carolina, Texas, Ohio, Michigan and Virginia — where legislatures controlled by one party drew so-called “gerrymandered” district lines. They won’t require changes in district lines this year, but the potential remains for 2020 if the court rules next term.
“While it’s disappointing to see the court punt, the decisions aren’t losses,” said Michael Li, senior counsel at the Brennan Center for Justice at NYU School of Law. “Both cases go on, and the justices will have the chance to finally say something about when gerrymandering is illegal next term, in a case out of North Carolina with overwhelming evidence of how gerrymandering quashes voters’ voices.”
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 Octoberwhen confronted by Wisconsin’s partisan artistry.
The Wisconsin map has left Republicans with 63 of 99 seats in the lower house of an otherwise politically balanced state. A federal district court ruled last year that the districts discriminated against Democratic voters “by impeding their ability to translate their votes into legislative seats.” It demanded that the legislature draw new district lines by this November, but the Supreme Court blocked that requirement while it considers the state’s appeal.
Challengers to Wisconsin’s lines told the justices in October that the GOP-drawn lines violated their constitutional rights to equal protection. Roberts did not address that question in sending the case back on procedural grounds.
During oral argument in March on the Maryland case, the court’s liberal justices said Democrats clearly went too far when they redrew a congressional district won for two decades by a conservative Republican so he would lose in a landslide in 2012. They did it by moving tens of thousands of Republicans out of the 6th di strict, which borders West Virginia and western Pennsylvania, and replacing them with tens of thousands of Democrats from the wealthy 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 to Democrat John Delaney in 2012.
Justice Anthony Kennedy said the Maryland state Constitution would not be allowed to mandate that lawmakers favor one party over another, yet the state achieved the same goal by enacting the new lines.
Since the Wisconsin case was heard, 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.
Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, said the North Carolina map “remains the most crystal clear example of why a rule creating limits on partisan gerrymandering is so necessary.” That case, she noted, doesn’t have the same procedural issues as the Wisconsin and Maryland cases.
Across the nation, computer software programs have vastly improved the art of line-drawing for partisan advantage. Republicans, in particular, seized on the process in 2011 after gaining nearly 700 seats in state legislatures two years earlier. That gave them control of both houses in 25 states.
The Supreme Court has ruled on multiple occasions that race cannot be a major factor in the way lines are drawn, but it has yet to set a standard for how much politics is too much.
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 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.
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.
