The curtain rises Wednesday on Act II of Extreme Partisan Gerrymandering, a play in three acts currently playing at the U.S. 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.
Act II opens Wednesday, as the court hears arguments in a second gerrymandering case. This one is from Maryland, and the justices decided to review it 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 a comment from Chief Justice John 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.
Election expert Rick Hasen, of the University of California, Irvine, said that 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.