This year the Supreme Court is taking another look at a perennial issue: partisan gerrymandering. The question is whether the lines of electoral districts as drawn by state legislatures can be found to violate the US constitution even if (a) they abide by the one-person-one-vote principle; (b) they do not give candidates of one race an advantage over candidates of another in any district; but (c) they do give the candidates of one political party a gross advantage over those of another.
Former Justice Anthony Kennedy, who for years was the swing vote in cases involving gerrymandering, always maintained that there could in principle be a rejiggering of lines so blatant that it would violate the constitutional rights of members of the political party it disadvantages. But Kennedy also maintained that the courts should not step in and interfere with the legislature’s prerogative unless plaintiffs could set out a clear judicially administrable standard of what is permissible or impermissible in this area.
On Tuesday, March 26, attorneys for the parties in two new gerrymandering lawsuits argued their case before the Supreme Court. The arguments followed familiar lines: one side tried to persuade the Justices that they had a straightforward clear-cut test of impermissibility. The other side sought to persuade the court that if they struck down the lines adopted they would find themselves in a pathless and dark political thicket.
The Thing to Know:
The Trump administration has come down on the side of the state legislatures’ prerogatives on this matter, and the US Solicitor General, Paul Clement, was in court speaking on that side of the dispute. When Justice Stephen Breyer suggested a rule to the effect that a map be deemed an unconstitutional partisan gerrymander if one party can win a majority of the statewide vote but nonetheless end up with less than one-third of the available legislative seats, Clement was unhappy.
There is “so much in that that I disagree with,” he said.