Benisek v. Lamone, the second gerrymandering case the high court has heard this term, focuses on whether redrawing district lines in favor of one party is a violation of the First Amendment. The Wisconsin challengers argue that extreme gerrymandering deprived Democratic Party voters of the equal protection of the law guaranteed by the Constitution, while the Maryland challengers contend that the gerrymander there deprives Republicans of their First Amendment rights by making their speech, their votes, less valuable.
In the Maryland case, plaintiffs offer a solution.
McGlone and Hachadoorian explained the history of gerrymandering in Pennsylvania and how elected officials gerrymander districts, while Hagen and Organ discussed the political implications of the gerrymandering process like the lack of enforcement of the Voting Rights Act of 1965 resulting in racial gerrymandering. The larger issue is how to address the broader problem of when partisan intent becomes unconstitutional and, on that, the court seemed unsure how to proceed, but recognized the Maryland case might be the best opportunity to address the issue. That's why the Supreme Court is still looking for a way to measure when partisan gerrymanders are unconstitutional. In January, the Supreme Court temporarily blocked a redistricting order from a lower court in North Carolina. In this case, they say Democrats in the state legislature reconfigured the lines to ensure that Republicans in western Maryland could not elect any GOP candidate as a punishment for their support of Bartlett.
But Justice Samuel Alito struggled to find where the Republicans' standard would end.
The Maryland case, known as Benisek v. Lamone, turns on the question of whether Maryland's redistricting process, which eliminated the Republican advantage in one of the two congressional seats the party had controlled, violated the First Amendment rights of GOP voters who were being discriminated against due to their past voting history.
Chief Justice John Roberts, a George W. Bush appointee, said the district has no internal logic.
According to the Brennan Center for Justice, GOP gerrymandering created a "durable majority" of 16 to 17 seats.
Supreme Court justices wrestled Wednesday with how far states may go to craft electoral districts that give the majority party a significant political advantage, delving into an issue that affects elections across the country.
Even more unsettling, it's far from clear what the justices would substitute for the current method of drawing congressional districts.
Justice Kennedy asked questions of the attorneys arguing for both sides but seemed quite skeptical of the redistricting in this case.
"The evidence is unequivocal", Kimberly told the justices. If the challengers were "willing to let go" of the earlier elections, he suggested to Kimberly, doesn't that mean that they would not be irreparably harmed if the 2018 election went forward under the existing map?
The Maryland case will be closely watched when it is decided as it relates to the more publicized gerrymandering case already heard by the Court back on October 3: Gill v. Whitford.
Moreover, there was no obvious consensus among the justices on how courts should determine when politics has played too strong a role in redistricting.
"How much more evidence of partisan intent could we need?" she added.
The Maryland case is different from the Wisconsin case in a key respect. The question of the remedy was so muddled that Breyer even put forth the notion that the Court should ask the parties for an entirely new set of briefs on it. "And, therefore, we will not do much to deal with a problem of serious dimensions that is national".
Breyer proposed a solution: The court should hold reargument not only in the Maryland and Wisconsin partisan-gerrymandering cases, but also in the North Carolina partisan-gerrymandering case that is now on hold for the first two cases.
Courts have historically not stepped into partisan gerrymandering claims, finding them to be the province of the political branches, but both the Maryland and Wisconsin voters seek to change that.
Justice Sonia Sotomayor suggested that the standard be whether partisan gain was the sole consideration in drawing a district. Breyer's colleagues on the bench, though, didn't seem to share his enthusiasm for the idea of reargument.
Republicans say it wouldn't have mattered, since no more votes are being held and lawmakers are out on the road campaigning for the regularly scheduled elections in the fall.
The Supreme Court, which has thrown out racially gerrymandered districts said to be stacked against minorities, has resisted second-guessing purely partisan gerrymandering.