Although the most egregious gerrymandering has been Republican-led, two can play at that game. This week, it was the Democrats being called to the Supreme Court to defend the gerrymandering of several districts in Maryland.
On Wednesday, the Supreme Court heard arguments in the second of two lawsuits it will decide this term that challenge partisan gerrymandering — the time-dishonored practice of drawing legislative district lines to give one political party an unfair advantage. Wednesday's argument involved a map engineered by Maryland Democrats to unseat a long-serving Republican congressman. In October, the court heard a challenge to a Wisconsin legislative map engineered by Republicans to disadvantage Democrats.
The Los Angeles Times editorial board has called for the Court to ban partisan gerrymandering.
Now that the second act of this legal drama has been played out, the justices should move toward the denouement: a decision holding that the Constitution prohibits congressional and legislative maps that are clearly designed to entrench one party and dilute the votes of the other. Such a ruling would strike a blow for representative government and put both political parties on notice that the sort of undemocratic mapmaking they have engaged in is no longer permissible.
At argument, the justices expressed concerns about timing—is it too close to November’s elections?—and the court’s role vis-á-vis partisan gerrymandering. Either one could provide some excuse for a delayed ruling or more stopgap answers.
The Court’s avoided the issue when possible due to the gravity, and ever increasing complexity, of districting. Not to mention the lack of consensus on the Court.
It has been almost 32 years since the court recognized that partisan gerrymandering could be challenged as a violation of the 14th Amendment's Equal Protection Clause if it intentionally and effectively discriminated against an identifiable political group. Then, in a 2004 case, Justice Anthony M. Kennedy suggested that gerrymanders might also violate the 1st Amendment's free-speech protections because they penalize certain voters for "their voting history, their association with a political party, or their expression of political views."
Yet despite these hints and suggestions, the court has yet to invalidate a map on the grounds that it's a partisan gerrymander. Meanwhile, the parties that control state legislatures have become more adept at manipulating maps to their own advantage, aided by increasingly sophisticated computer software.
Aside from Kennedy’s musings, Republicans don’t have much to go on in pioneering this First Amendment argument in the Maryland case.
[At arguments] the lawyer for the Republicans, channeling Kennedy, cited the 1st Amendment, telling the court: "Government officials may not single out particular individuals for disfavored treatment on the basis of the views that they have expressed at the ballot box in prior elections." In the case involving a pro-Republican Wisconsin legislative map, a lower court cited both the 1st Amendment and 14th Amendment in concluding that a redistricting plan violates the Constitution if it is "(1) intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect and (3) cannot be justified on other, legitimate legislative grounds."
Democrats have argued against partisan gerrymandering based on the 14th Amendment’s guarantee of equal protection, as well as First Amendment freedom of expression and association protections.
If the Democrats lose the case, they’ll win the war: It’s Republicans who have used partisan gerrymandering to greatest (and most devastating) effect.