NOEL KING, HOST:
The curtain rises today on Act 2 of extreme partisan gerrymandering, a play in three acts currently onstage at the U.S. Supreme Court. NPR's legal affairs correspondent Nina Totenberg updates the plotline of the biggest legal controversy now pending before the nation's highest court.
NINA TOTENBERG, BYLINE: Act 1 opened the first week in October when the nine justices heard arguments in a case testing whether there's 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 - the Republican gerrymander of the Wisconsin state Legislature, a design that delivered nearly two-thirds of the districts to the GOP even as Republicans lost the statewide vote. Act 2 opens today as the court hears arguments in a second gerrymandering case, this one from Maryland, which the justices decided to review more than two months after the arguments in the Wisconsin case were completed. Just why the court added the second case and so much later is unclear. Speculation has centered on two theories, one legal and one political. The political explanation was spurred by this comment from Chief Justice John Roberts at the Wisconsin argument.
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JOHN ROBERTS: If you're the intelligent man on the street, and the court issues a decision, and let's say, OK, the Democrats win, 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's going to come out one case after another as these cases are brought in every state. 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.
TOTENBERG: Now, as it happens, while the Wisconsin case involves a redistricting that strongly favors the Republicans, the Maryland redistricting under scrutiny today 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 districts in the state. The result is that, today, just one of Maryland's eight members of Congress is a Republican. Bottom line - it could be that optics is part of the reason the court added a second gerrymandering case to its docket so that in one case, the Republicans would prevail, and in the other, the Democrats would.
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, though, drawing new lines for one district would, of necessity, have ripple effects, changing the lines in many other districts, too. 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 suggests 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 clear that he remained open to finding a way to measure what is unconstitutional partisan gerrymandering. And he specifically mentioned the First Amendment notion that government action cannot punish people based on partisan affiliation. Election expert Rick Hasen says that Kennedy, 81, knows he will not be on the court forever.
RICK HASEN: It's put-up-or-shut-up time. Either he's going to say, we've got to start policing this, or he has to recognize that what's going to happen in the next round to 2020 is going to look a lot worse than what we've seen in this round. That is, it's going to be no holds barred, squeeze out whatever you can in favor of your party and against the other party.
TOTENBERG: Act 3 of this drama - well, that's likely to come in June when the Supreme Court finishes writing it. Nina Totenberg, NPR News, Washington.
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