Supreme Court struggles with judges’ role in drawing political maps

Supreme Court struggles with judges’ role in drawing political maps

Supreme Court justices seemed to agree Tuesday that extremely partisan legislative maps are distasteful, but struggled to find a clear way to identify only the outrageous maps without making judges the final arbiters in every election.

The case could have a major effect on future congressional and state legislative elections, putting the court in a thorny political position.

Democratic-appointed justices seemed sanguine about their ability to step in and curb only the worst legislative plans, but GOP-appointed justices worried that the courts would be overloaded with challenges, and would be put in the position of deciding the outcome of elections.

“We will have to decide in every case whether the Democrats win or the Republicans win,” Chief Justice John G. Roberts Jr. warned during oral argument on a case out of Wisconsin.

GOP lawmakers, who controlled the process in Wisconsin after the last census, drew the state’s legislative districts to maximize the number of Republicans elected to the statehouse. They did that by packing Democratic into relatively few districts, where Democratic candidates easily won, then spread Republicans out more evenly among districts so GOP candidates won.

That led to a situation in 2012 where Republicans won less than 49 percent of the vote among those who cast ballots for the state Assembly, but won 60 of the 99 seats.

Voting-rights advocates said Wisconsin used cutting-edge technology to maximize the GOP vote, and said if the map is upheld it will be copied by states everywhere after the 2020 census.

“You are the only institution in the United States that can solve this problem, just as democracy is about to get worse,” said Paul M. Smith, the lawyer arguing against Wisconsin’s map, told the Supreme Court.

Justices on both sides of the political spectrum said extreme gerrymandering was troubling — echoing past Supreme Court decisions. But those previous decisions had struggled to identify a concrete test judges could use to single out bad plans.

Now, some social scientists, voting-rights advocates and the court’s liberal justices thing they’ve found such a test, based on new research that they said can calculate the number of “wasted” votes stemming from people being packed into districts.

Other social scientists, though, question whether that’s a solid enough screen, saying even using what’s become known as the “efficiency gap” test would invalidate plans written by supposedly neutral judges.

Chief Justice Roberts said the tests suggested by academics amounted to “sociological gobbledygook.”

“You’re taking this issue away from democracy and throwing it into the courts,” he said.

Justice Stephen G. Breyer, though, offered a multi-part test he said could cut through the clutter. He said if a single party controlled the process, if the map led to a major disparity between percentage of votes and the end result of seats, and if it was deemed to be persistent across elections, it could be questioned.

“I suspect that’s manageable,” he said.

Justice Sonia Sotomayor said in Wisconsin’s case, Republican legislators kept sending the map back to squeeze out more partisan advantage. She said if challengers could prove the state sought the most partisan map possible, that should be enough.