ELECT Blog Election Law Essays on Current Topics
Partisan Gerrymandering — Who’s Willing to Predict how the Supreme Court will Rule?
By the end of the week, the United States Supreme Court will decide two partisan gerrymandering cases. How the Court rules will have huge ramifications for drawing congressional districts after the 2020 Census.
The Supreme Court heard oral argument in Rucho v. Common Cause, a Republican-favored Congressional plan challenge in North Carolina and Lamont v. Benisek, a Maryland Congressional map that drew a long-term incumbent Republican congressman into a majority Democratic district. The Supreme Court has held racial gerrymandering is unconstitutional but it has never invalidated districts on partisan grounds.
What is going to happen? Last year, in a similar partisan gerrymandering case involving Wisconsin state legislative districts, the Supreme Court ducked the merits and remanded the case for the trial court to review whether the plaintiffs had standing to bring a statewide challenge to the plan.
It is hard to predict because the majority conservative Justices have not shown an inclination to jump into this hyper-politically charged issue. But it does not seem likely the Supreme Court will fail to address the merits with the 2020 Census redistricting looming. Potential options the Court could take: 1) Rule the issue is a political question and therefore the court doesn’t have jurisdiction; 2) Rule there is no measurable standard to determine whether the partisan drawn districts are violative of the constitution; 3) Avoid making a decision on partisan redistricting but leave open the future possibility of endorsing a measurable standard; or 4) Rule the plans are a constitutional violation but not provide a standard, leaving a “you’ll know it is pornography” standard.
The Court knows guidance and clarification is needed for the post-Census round of redistricting. But will the Court take the plunge and provide the clarity for the rules to draw districts. However, the Court rules, legal challenges should continue given the high stakes in play.