Editorial: The Supreme Court has been agonizing over partisan gerrymandering for decades. Stop the dithering

On Wednesday the Supreme Court heard arguments in the second of two lawsuits it will decide this term that challenge partisan gerrymandering — the time-dishonored practice of drawing legislative district lines to give one political party an unfair advantage. Wednesday’s argument involved a map engineered by Maryland Democrats to unseat a long-serving Republican congressman. In October, the court heard a challenge to a Wisconsin legislative map engineered by Republicans to disadvantage Democrats.

Now that the second act of this legal drama has been played out, the justices should move toward the denouement: a decision holding that the Constitution prohibits congressional and legislative maps that are clearly designed to entrench one party and dilute the votes of the other. Such a ruling would strike a blow for representative government and put both political parties on notice that the sort of undemocratic mapmaking they have engaged in is no longer permissible.

For the court to reach that result, it needs to keep its collective eye on the big picture and not be waylaid by the sort of quibbles and qualms featured in Wednesday’s argument, including the concern expressed by some justices that the imminence of the 2018 congressional election might make it impossible for the plaintiffs to obtain the judgment they are seeking from a lower court.

Nor should the court agonize unduly about whether it’s practical for federal courts to supervise inquiries into partisan gerrymandering. As Justice Elena Kagan noted, the courts already investigate claims of racial gerrymandering: “We look to what legislators say. We look to what mapmakers say. We look to a variety of pieces of circumstantial evidence about how the districting turned out, about what was done.” Courts can conduct similar inquiries when partisanship rather than race warps the drawing of district lines.

It has been almost 32 years since the court recognized that partisan gerrymandering could be challenged as a violation of the 14th Amendment’s Equal Protection Clause if it intentionally and effectively discriminated against an identifiable political group. Then, in a 2004 case, Justice Anthony M. Kennedy suggested that gerrymanders might also violate the 1st Amendment’s free-speech protections because they penalize certain voters for “their voting history, their association with a political party, or their expression of political views.”

Yet despite these hints and suggestions, the court has yet to invalidate a map on the grounds that it’s a partisan gerrymander. Meanwhile, the parties that control state legislatures have become more adept at manipulating maps to their own advantage, aided by increasingly sophisticated computer software.

For example, Republican voters challenging the Maryland congressional map claim that its designers used “big data and cutting-edge redistricting software” to reconfigure a district that had been represented for nearly two decades by Republican Rep. Roscoe Bartlett. After the redistricting, Bartlett lost his 2012 reelection bid to a Democrat.

On Wednesday the lawyer for the Republicans, channeling Kennedy, cited the 1st Amendment, telling the court: “Government officials may not single out particular individuals for disfavored treatment on the basis of the views that they have expressed at the ballot box in prior elections.” In the case involving a pro-Republican Wisconsin legislative map, a lower court cited both the 1st Amendment and 14th Amendment in concluding that a redistricting plan violates the Constitution if it is “(1) intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect and (3) cannot be justified on other, legitimate legislative grounds.”

That is the sort of standard the Supreme Court should embrace. The danger is that a majority of the court will once again fail to cohere around a clear constitutional holding and a road map about how lower courts should evaluate gerrymanders.

There was a clarifying moment in Wednesday’s often technical argument when Justice Stephen G. Breyer succinctly stated the issue in this case. “It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering.”

Unfortunately, Breyer then went into worry mode and wondered whether there was a practical solution “that won’t get judges involved in dozens and dozens and dozens of very important political decisions.” Finally, he suggested that because of the complexity of the issue the court might want to put off a decision and schedule new arguments on the Maryland and Wisconsin cases and address a redistricting dispute in North Carolina at the same time.

That would be a mistake. The court has been agonizing about how to manage partisan gerrymanders for two decades. It should stop its dithering and deal a death blow to the gerrymander.

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