Supreme Court Again Weighs Voting Maps Warped by Politics

WASHINGTON — For the second time this term, the Supreme Court heard arguments Wednesday about whether voting maps can be so distorted by politics that they violate the Constitution. But if the first arguments heartened opponents of extreme partisan gerrymandering, this hearing only served to confuse them.

The earlier case, from Wisconsin, was argued in October, and several justices seemed intrigued by the idea that the Constitution may place limits on extreme partisan gerrymandering, where the party in power draws voting districts to give itself an outsized advantage in future elections. A decision is expected by June.

The Supreme Court has never struck down a voting district as an unconstitutional partisan gerrymander. A ruling allowing such challenges could revolutionize U.S. politics.

The court’s surprise announcement in December that it would hear a second partisan gerrymandering case, Benisek v. Lamone, No. 17-333, led to much speculation about what the move meant for the challengers in the Wisconsin case, Gill v. Whitford, No. 16-1161. But Wednesday’s argument did almost nothing to clear up the mystery of why the justices decided to hear a second case.

Several justices said the new case, from Maryland, was plagued by procedural and practical problems.

Justices Ruth Bader Ginsburg and Sonia Sotomayor said there was little reason for the court to rule now because its decision would come too late to affect the 2018 elections. Chief Justice John Roberts said the challengers had waited too long to file suit.

If there was a hint about where the court was headed in the Wisconsin case, it came from Justice Stephen Breyer, who suggested that the court schedule a new round of arguments in both cases, along with one from North Carolina, in the term that will start in October.

Breyer, who seems ready to allow constitutional challenges based on partisan gerrymandering, probably would not have made the suggestion had his views prevailed when the justices took their preliminary vote in the Wisconsin case in October.

The Maryland case is a challenge to a single congressional district, while the older one challenged a statewide map for the Wisconsin State Assembly. The new case was brought by Democratic voters, while the older one was brought by Republicans. And the new case relies solely on the First Amendment, while the older one was pursued largely on equal protection principles.

Michael B. Kimberly, a lawyer for the plaintiffs in the Maryland case, argued that Democratic state lawmakers there had redrawn a district in northwestern Maryland to retaliate against citizens who supported its longtime incumbent, Rep. Roscoe G. Bartlett, a Republican. That retaliation, he said, violated the First Amendment by diluting their voting power in a district that had been controlled by Republicans.

Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Rep. John Delaney, a Democrat, by a 21-point margin.

Several justices said the evidence of extreme partisan gerrymandering was strong.

Justice Elena Kagan said that in some cases it might be hard to tell when politics played too large a role, but she said that was not a problem here. “However much you think it too much,” she said, “this case is too much.”

Roberts criticized the challenged district’s odd shape. “It doesn’t seem to have any internal logic,” he said.

Steven M. Sullivan, Maryland’s solicitor general, said there had been a close race in 2014 and that the district’s political future was uncertain. This, he said, was hardly evidence of unconstitutional partisan gerrymandering.

When the Wisconsin case was argued in the fall, a majority of the court seemed at least open to the possibility that some kinds of partisan gerrymandering are unconstitutional. Justice Anthony Kennedy, who probably holds the decisive vote in both cases, asked several questions in October about the First Amendment theory relied on by the challengers in the new case.

In the past, some justices have said the court should stay out of such political disputes. Others have said partisan gerrymanders may violate the Constitution.

Kennedy has taken a middle position, leaving the door to such challenges open a crack, though he has never voted to sustain one.

In 2004, he wrote in a concurring opinion on a gerrymandering case that he might consider a challenge if there were “a workable standard” to decide when such tactics crossed a constitutional line. But he said he had not seen such a standard.

In the Maryland case, a divided three-judge panel of the U.S. District Court in Maryland in August denied the challengers’ request for a preliminary injunction. In dissent, Judge Paul V. Niemeyer, who ordinarily sits on the U.S. Court of Appeals for the 4th Circuit, in Richmond, Virginia, wrote that partisan gerrymandering was a cancer on democracy.

“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy,” wrote Niemeyer. “Indeed, both Democrats and Republicans have decried it when wielded by their opponents but nonetheless continue to gerrymander in their own self-interest when given the opportunity.”

“The problem is cancerous,” he wrote, “undermining the fundamental tenets of our form of democracy.”