Will Justices Toss Out Partisan Gerrymandered Districts?

of the criteria for the map. What was the focus of the Justice's questions, Well, part of it was what you just talked about, the fact that this was an extreme jerrymander, both in terms of the intent explicit by Republicans that they were trying to get as many GOP seats as they could uh and the effect of it. It basically worked. Republicans in the first election got ten out of the thirteen seats. On the second election they

got at least nine. There's one district that's being revoted, and that even though in both cases the vote overall was pretty much fifty fifty. So that was a big That was one focus of the case, and then the second focus was how are we going to handle this as courts if we say that this map is too PARTI said, how are we going to draw a line that will let us judge all these other maps we may be called upon to rule on. So the Court has been willing to restrict gerrymandering based on race, why

not so for those based on politics? That that's another good question. The Court has in the past explicitly said taking partisanship into account is okay, at least to some degree. They said, that's a legitimate consideration. You also have to look at other things like keeping counties together and you know, not having lines that look too ridiculous with race. On the other hand, there is this this notion that that is something we really don't want to do unless we

have a strong reason for it. We don't like classifying people according to their race, even when we're drawing congressional districts. Now, the Court has allowed some consideration of race, and part of the Voting Rights Act there the primary ideas to make sure that racial minorities are able to elect somebody of their choice, to prevent districts from being drawn so that, say, a heavily black city is unable to elect a black

representative if that's what the people want. So race and politics sort of start from different places in the minds of the justices. What is the defense given to maps that are clearly out of whack? Well, part of the part of the defense is that this is just not

something courts are competent to resolve. And this was a concern that Chief Justice Roberts Ray's last term when the Court considered these issues, and the lawyer defending the North Carolina map raised the issue again, which is that in every case, the Supreme Court is going to be called upon to decide whether Republicans win or Democrats win, and that is something that could cast a cloud on the

Court's legitimacy as a nonpartisan actor. Now, the counter argument to that, which lawyers a acking the map put forward is that the Court, you know, will look like it is making a political decision if it does not get involved. So it may be that the Court can't really win here. The question will be whether they think there's any way they can separate out extreme partisan jurymandering from cases where politics are considered, but but not too much. Do any

of the justices appear to you to have key votes? Yes, so the key votes are almost certainly coming from John Roberts, which is something we're getting used to, and the new Justice Brett Kavanaugh on both of them asked questions of both sides, and by the end of the two arguments today the Court also heard arguments in the Maryland case, it wasn't obvious which way they were going to come out,

especially Kavanaugh. He did essay during the North Carolina case that the notion of proportional representation, this idea that you know, if a state of split fifty fifty, each party should get roughly the representatives, that that was at least something

that was pretty easy to apply judicially manageable. But he also pointed to Supreme Court precedents and key opinions by swing justices like Sandrada O'Connor and Anthony Kennedy that in the past have been clear that the Court didn't want to try to mandate proportional representation, that that is not something that's in the Constitution. So based on the argument, Justice Kavanaugh's vote is up in the air at this point. So last time the Court sort of skipped the main

issue and went to the details. Could that happen again? It could, but it seems harder to the last time around. In this case involving Wisconsin, the Court said that the voters suing there didn't have standing. They hadn't shown or at least they hadn't shown that they have standing. They hadn't shown that they were injured in a way that would let them sue, And the court strongly suggested that any suits should happen not on a statewide basis, but

on a district by district basis. A voter saying, hey, my particular vote didn't count the way it should because the Republican their Democrats who were in charge of joining the maps, discriminated against me because I don't re with them. The cases before the Court today did not seem like

they had that same sort of problem. In North Carolina's case, for example, they have voters from every congressional district who who are suing, and they are generally saying, my district, not the state wide map, but my district was drawn in an unconstitutional way. And in general, there wasn't a whole lot of discussion about that standing issue in the court.

So it seems like the Court is going to get to the merits and beside the bigger questions about whether maps like these can ever be challenged, So then what are the implications here? Will have wide effects as new maps are drawn, certainly will have wide effects, both potentially for some maps that are in place right now, but also for the next round of map drawing, which will happen after the is And you know, these are really fundamental questions about, you know, how how our democracy is

supposed to work. I mean, the people who criticized jerrymandering say we end up with uncompetitive elections that don't reflect the will of the vote. And people on the other side say that the judiciary really needs to stay out of something that is so deeply political, and that the

system can correct itself. Ultimately, the voters, if they're fed up enough with gerrymandering, can elect different people, maybe not in their particular district, at least they can elect a different governor in a state, or perhaps they can put in place a commission to draw the lines so that there are other tools, is the argument, and the Court is going to have to decide which one of those two viewpoints is correct. I noticed in your story that

Justice Kavanaugh asked questions about independent commissions. Could the Court simply say independent commissions are the way to go. It could, and that would be really interesting. A few years ago, the Court upheld independent commissions, but it did it on a five to four vote, and it had seemed like there was a possibility that this more conservative court might

reverse that decision at some point, overturn it. But both Kavanaugh and especially just As Gorset's use those commissions as one reason why they or at least anything that the Court shouldn't get involved. If that's part of the rationale here, it's really hard to see how the Court could later turn around and say no, those commissions are unconstitutional as well. Thanks Greg, I know you have more interesting arguments coming up. That's Greg Star, Bloomberg New Supreme Court reporter. Thanks for

listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg. Yeah,