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Frustration seemed to reign at the Supreme Court today. Justices heard arguments in a second case about extreme partisan gerrymandering. The first case, argued last fall, challenged a Republican gerrymander of the Wisconsin state legislature. It was so partisan the GOP captured nearly two-thirds of the seats even when they lost the statewide vote.
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Today's case involves a Democratic gerrymander in Maryland. It redrew congressional district lines with the avowed purpose of flipping a traditionally Republican district into Democratic hands. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: On the steps of the Supreme Court, lawyer Michael Kimberly, representing Republican voters from Maryland's 6th Congressional District, said people on the street understand what partisan gerrymandering is all about.
MICHAEL KIMBERLY: It's about rigging elections. It is fundamentally counter-Democratic.
TOTENBERG: Inside, the justices certainly grasped the problem of modern gerrymandering and how it's grown exponentially because of sophisticated data collection and advanced computer technology. But the court seemed frustrated when it came to figuring out what, if anything, the court should do about it. Justice Stephen Breyer put it this way - it seems like a pretty clear violation of the Constitution to have deliberate extreme gerrymandering, but is there a practical remedy that won't get judges involved in dozens and dozens and dozens of very important political decisions? Breyer noted that the court has before it the Maryland and Wisconsin cases and a case in the wings from North Carolina. Each is based on a different legal theory, so Breyer suggested that perhaps the court should have all three cases reargued next term to try to make sense of them all together. But none of the other justices picked up that suggestion.
The Republican challenge to the Maryland redistricting is based on the idea that a person's vote is the ultimate form of political expression and that the Maryland gerrymander thus violates the First Amendment guarantee of free speech. But pressed by the justices, Kimberly was willing to embrace the arguments in other cases, namely that extreme partisan gerrymandering violates the voters' rights to equal protection of the law.
Maryland solicitor general Stephen Sullivan had the unhappy task of defending a gerrymander that both liberal and conservative justices viewed as extreme. Justice Sonia Sotomayor, an Obama appointee, noted that the Democratic governor of the state said he felt duty bound to ensure that his party won in this district for the decade. Justice Elena Kagan, also an Obama appointee, said however much you think is too much partisanship, this case is too much. Only 10,000 people had to be removed from the district to comply with one person, one vote. But what the Maryland legislature did, she said, was to shovel 360,000 people out of the district and bring 350,000 in. The result being that the district went from 47 percent Republican and 36 percent Democratic to exactly the opposite.
Chief Justice John Roberts, a George W. Bush appointee, said the district has no internal logic. You have people from suburban Potomac ten miles from Washington, D.C., join with people from the rural far west panhandle. The problem is greater than one district in Maryland, chimed in Breyer, observing that no redistrictor would ever be so stupid as to duplicate the Maryland facts after today's argument. The problem, he reminded his colleagues, is a national one. We can't just say forget it. And if you think what's happened now is something, wait until you see those computers really working in 2020.
The difference between the court's conservative and liberal justices, however, seemed to be their willingness to actually deal with what all agree is a problem. Justices Ginsburg, Kagan and Sotomayor all observed that the court has established standards for dealing with racial gerrymandering, so why not extreme partisan gerrymandering? Sotomayor - are we just saying it's too complicated? Chief Justice Roberts - one difference is that we've always recognized that a certain degree of partisanship is acceptable. We've never accepted that a certain degree of racial discrimination is acceptable.
With the court apparently split, it would appear that, as is frequently the case, Justice Anthony Kennedy holds the decisive fifth vote. Today, he gave only the barest hint that he might side with the court's liberals - nothing worth placing a bet on. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.