WASHINGTON — The Supreme Court justices sounded closely split Tuesday during arguments over whether to rein in partisan gerrymandering of congressional districts, with new Justice Brett M. Kavanaugh probably holding the deciding vote.
The four liberal justices, all Democratic appointees, said the court was confronting the “worst of the worst” examples of politically motivated gerrymandering in cases from North Carolina and Maryland.
It is “so dramatically wrong … to leave all this to professional politicians” who rig the outcomes, said Justice Elena Kagan.
But most of the court’s conservatives, all Republican appointees, sounded just as insistent that the Constitution left it to state lawmakers, not federal judges, to draw election districts for members of Congress.
“Why should we wade into this?” asked Justice Neil M. Gorsuch.
If there was one encouraging sign for the challengers, it was that Kavanaugh seemed open to interceding in cases of extreme gerrymandering. He repeatedly asked whether the Constitution calls for “proportional representation” in Congress, so that the political views of the elected members of Congress would roughly match the political views of the state’s voters.
None of the lawyers gave a firm answer to Kavanaugh’s question, but he suggested that the extreme deviations in the cases under consideration could be struck down.
North Carolina’s map gave Republicans a 10-3 majority, even though they won just 51 percent of the vote.
In the Maryland case, Democrats redrew the districts in 2011 to eliminate one Republican stronghold. The revised map gave Democrats a 7-1 majority in the state’s congressional delegation.
That may go too far, Kavanaugh, who lives in Maryland, told a state lawyer. “The 7-1 is a problem. The 5-3 is almost certainly not a problem, which I think has got to be right … because it’s close to the proportion of Democrats and Republicans in the state,” he said.
If Kavanaugh were to stick with that view, it could transform the court’s approach to partisan gerrymandering. For more than 30 years, the court has struggled with gerrymandering but has never struck down a state’s election districts on the grounds that they were so unfair as to deny one party’s voters equal representation.
