Next Monday, the Supreme Court begins its March argument session.  Over the following two weeks, the Supreme Court will hear three case on redistricting.  These cases represent the fifth consecutive year in which the Supreme Court is looking at the rules for redistricting.  While memory is always a tricky thing, I can’t remember a redistricting cycle in which there were these many cases this late in the cycle.  At this point, these cases are more about setting the ground rules for 2021 than getting valid lines for the 2020 election (as, regardless of the decisions in these cases, the lower courts will not have much time to redraw the lines or have those new lines reviewed before 2020).

The session starts on March 18 with another look at the lines for the Virginia House of Delegates.  Two years ago, the Supreme Court found that the trial court applied the wrong standard in considering whether the Republicans in the legislature had improperly considered race in drawing those lines.  On the reconsideration ordered by the Supreme Court, the trial court changed its earlier decision and found that race improperly predominated in the line drawing decisions.  As with earlier cases this cycle, this latest racial gerrymander case involves the fine balancing of the interests of the Voting Rights Act (requiring the State to create majority-minority districts) and the Equal Protection Clause.  The question in these cases ultimately are two questions.  First, whether in the name of creating winnable districts for minorities, the legislature is actually engaged in packing more minorities into the district than is really necessary to meet the requirements of the Voting Rights Act.  Second, whether the districts created are such a departure from the normal districting principles that the lines are clearly the result of a racial gerrymander. 

In previous cases, the Supreme Court has rejected the concept of a one-size-fits-all approach to how many minorities an individual district must have to give minorities the ability to elect the candidate of their choice.  The last time that these districts were in front of the Supreme Court, the majority found that the record showed that the legislature had used such a mechanical rule, drawing the lines so that each of the twelve minority districts had a voting-age population which was at least 55% African-American.  The question on remand (and the issue on appeal) is whether that percentage was appropriate given the history of voting in these area and, assuming that it was not, whether the lines drawn were still appropriate give the other concerns (compactness, contiguity, incumbent protection, existing community lines, etc.) that traditionally govern the redistricting process.

The other two cases, which will be heard on March 26, are partisan redistricting cases returning from last year.  Last year, the U.S. Supreme Court issued opinions in two cases — one from Wisconsin and one from Maryland.  In the Wisconsin case, rather than addressing the merits, the Supreme Court established who could bring a partisan redistricting case.  Based on the opinion in the Wisconsin case, the Supreme Court declined to issue an opinion in a separate case from North Carolina and sent the North Carolina case back to the trial court so that the trial court could determine whether the challengers in North Carolina could bring the case.  The Maryland case was an appeal from a preliminary ruling.  The Supreme Court found that, under the circumstances of the case, it should not grant relief from the preliminary ruling and should wait for a final ruling to address the merits.  Over the summer, the trial court reaffirmed its original order in the North Carolina case (finding that it was properly brought), and the trial court in the Maryland case issued its final ruling.

In both the North Carolina case (involving a congressional district map drawn by a Republican legislature) and the Maryland case (involving a congressional district map drawn by a Democratic legislature), the trial courts found that the legislatures improperly drew the lines to assure a partisan advantage for the majority party.   Both cases have procedural questions.  As such, it is possible that the Supreme Court could, again, decide the cases on procedural grounds and avoid reaching the ultimate question.  That ultimate question — which the Supreme Court has evaded for over two decades — is whether the Constitution bars the legislature from fixing elections by drawing district lines to assure that the legislature’s current majority party wins a certain number of seats and, if so, how does a court measure when the district lines are too influenced by partisan considerations.  Assuming that the Supreme Court can get past the first question, the second question is exceedingly difficult.  A lot of different outside groups have proposed different tests for finding a partisan gerrymander.  This inability to find an appropriate test is one of the reasons why the Supreme Court has not yet recognized a partisan gerrymander in any case. 

There are two particular problems in these various tests.  The first is distinguishing evidence from a legal test.  There are a lot of statistical measures and tools that can show that there is something fishy with district lines.    But no one test will cover all situations and there will always be factual questions of the assumptions that any expert witness is using in applying these mathematical and statistical standards.  The legal test for a partisan gerrymander can be and should be similar to the test for a racial gerrymander (particularly as some legislatures are now using partisan explanations to cover for racial gerrymanders) — whether partisan reasons are a predominate reason for the lines and whether the lines are justifiable based on non-partisan reasons.  The second problem is that not a lot of Supreme Court justices (or their law clerks) are well-grounded in the science of statistics.  This problem makes it hard for the justices to get what these tests prove and what they don’t prove. 

As noted at the beginning, we are late enough in the cycle that the results in these cases will have very little impact on this cycle.  But, in a mere twenty-four months, all fifty states will be drawing new lines for their legislatures and most of them will also be drawing new lines for congress.  With the advances in computers and statistical tools, it is easier than ever for a legislature to draw lines that all but guarantee a certain result as far as partisan advantage.  What is said in these cases will tell the legislatures and the professional staffs of the political parties what they can get away with in 2021.