Updated at 5:30 p.m. ET
The Supreme Court justices seemed to grasp the problem of gerrymandering in oral arguments on Wednesday and that it will only get worse, as computer-assisted redistricting gets even more refined.
But they appeared frustrated over what to do about it — without becoming the constant police officer on the beat.
This case, involving a Democratic-drawn congressional district in Maryland, is essentially Act II of the gerrymandering play at the Supreme Court.
Act I opened the first week in October when the nine justices heard arguments in a case testing whether there is any constitutional limit to partisan gerrymandering — the practice of drawing legislative district lines to maximize and perpetuate the power of the incumbent party. At issue in the case is the Republican gerrymander of the Wisconsin Legislature — a design that delivered nearly two-thirds of the districts to the GOP even as Republicans lost the statewide vote.
In the Maryland case argued Wednesday, Michael Kimberly, the attorney for the Republican plaintiffs, contended that the map drawers succeeded in "rigging" an election, and the average American voter understands what's going on. He dubbed it an affront to democracy.
That's the kind of argument that Democrats have made about lots of other states throughout the country, where Democrats are underrepresented in both state legislatures and the U.S. House or Representatives.
The Supreme Court has ruled that racial gerrymandering is illegal, but has recognized that a degree of partisan gerrymandering will take place and is OK. The question is how much.
Several justices echoed concerns about how much partisan gerrymandering is taking place and how much worse it will get because of technology in 2021 when the districts will be redrawn after the 2020 Census.
Justice Stephen Breyer all but threw up his hands out of frustration. "So what do we do? Just say good-bye? Forget it?" he asked. "The people who do the gerrymandering are not stupid," Justice Breyer warned. "Wait until you've seen those computers really working" after the next census.
Many of the justices' questions hinged on the issue of timing. Justice Ruth Bader Ginsburg wondered if it wasn't "much too late" for the Republican challengers, even if they were successful, "for there to be any change for the 2018 election."
Chief Justice John Roberts derided them for waiting too long. "If you've been willing to accept that harm in three different cycles, I don't know if we should get concerned about irreparable harm for one more," he said.
But as Justice Breyer pointed out, this is a "problem of serious dimensions that is national."
"However much you think is too much [partisanship], this case is too much," said Obama appointee Elena Kagan. She noted that in Maryland, Democrats only needed to move 10,000 people into the district to comply with one person-one vote, but instead they shuffled 360,000 people out and brought 350,000 people in. The result was that the district went from 47% Republican and 36% Democratic to exactly the opposite.
Justice Sonia Sotomayor, also an Obama appointee, noted that the Democratic governor at the time of the redistricting said he felt "duty bound" to ensure that his party won the district for the rest of the decade, until the next census.
Chief Justice John Roberts, appointed by George W. Bush, said this district geographically didn't make much sense, that it had "no internal logic." It stretches from the Washington suburbs to the more rural, "far west panhandle." He joked that both areas had farms, but one had "hobby farms" while the other had "real" ones.
Some of the justices compared partisan gerrymandering with racial gerrymandering. Justice Ginsburg noted, "There was a period when 'max-black' was the effort. And it seems to me that what we have here is 'max-Democratic.' And if 'max-black' was no good, why should 'max-Democratic' be OK?"
Maryland Solicitor General Steven M. Sullivan responded that racial gerrymandering draws "from a history of exclusion of African Americans from our political process, something that Republicans can hardly claim, certainly not today" when they control both the White House and Congress.
But Chief Justice Roberts opined that "one difference is that we've always recognized that a certain degree of partisanship is acceptable," while "we've never accepted that a certain degree of racial discrimination is acceptable."
Why the second case?
Just why the court added the Maryland case to its docket long after the Wisconsin case was argued last fall is unclear. Speculation has centered on two theories — one legal and one political.
The political explanation was spurred by a comment from Chief Justice Roberts during the Wisconsin arguments. "If you're the intelligent man on the street and the court issues a decision" and the Democrats win, he speculated, "the intelligent man on the street is going to say, 'It must be because the Supreme Court preferred the Democrats over the Republicans.' ... And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country."
Now, as it happens, while the Wisconsin case involves a redistricting that strongly favors the Republicans (although only at the state legislative district level), the Maryland redistricting under scrutiny Wednesday favors the Democrats. The Democratic leadership in the state drew the congressional district lines to make it more difficult for the GOP to prevail in one of the two traditionally Republican congressional districts in the state. The result is that today just one of Maryland's eight members of Congress is a Republican.
The bottom line is it could be that optics are part of the reason the court added a second partisan gerrymandering case to its docket, so that in one case the Republicans could prevail, and in the other, the Democrats could.
Equal protection or free speech?
There are other differences between the two cases. The Maryland challengers object to only one district's design, while the Wisconsin challengers object to the whole state's redistricting. That said, drawing new lines for one district, would, of necessity, have ripple effects, changing the lines in others.
Another difference is the major legal argument. 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. But each of these arguments feeds into the other. And statistical analyses suggest that each argument, if adopted, would produce pretty much the same results.
The First Amendment argument, however, appeals, in particular, to the justice whose vote is likely to decide the case, Justice Anthony Kennedy. In 2004, he provided the fifth vote for the court staying out of partisan gerrymandering cases, but he made it clear that he remained open to finding a way to measure what is unconstitutional gerrymandering based on party and he specifically mentioned the First Amendment notion that government action cannot punish people based on partisan affiliation.
At Wednesday's argument, he gave only the barest hint that he might side with the court's liberals. Nothing worth putting a bet on.
Still, as election expert Rick Hasen, of the University of California, Irvine, observes, Kennedy, 81, knows he will not be on the court forever.
"It's put-up-or-shut-up time," Hasen said. "Either he's going to say, 'We've got to start policing this' or he has to recognize that what is going to happen in the next round in 2020 is going to look a lot worse than in this round, that it's going to be no-holds-barred, squeeze out whatever you can, in favor of your party and against the other party."
Act III of this drama? Well, that is likely to come in June when the Supreme Court finishes writing it.