On Friday, the Supreme Court agreed to hear an appeal from Republicans who are challenging Maryland’s Democratic-drawn congressional map as an unconstitutional partisan gerrymander. Since the 1980s, the Supreme Court has repeatedly held that partisan gerrymandering could theoretically violate the Constitution, but it has never actually invalidated any particular map on such grounds, saying it lacks a standard to decide when to do so. A court victory for the plaintiffs in this case, known as Benisek v. Lamone, could therefore establish such a standard, setting a far-reaching precedent that could finally begin to place limits on the epidemic of gerrymandering that has swept the nation.
Republicans were in charge of redistricting in vastly more states following the 2010 census that Democrats, but Maryland was one of the rare places where Democrats had control over the process. Shown at the top of this post, Maryland's map gets routinely described as one of the worst partisan gerrymanders in the country. However, while it certainly was crafted to benefit Democrats, its tortured lines aren’t actually designed to gain a maximum partisan advantage. Nevertheless, while Maryland Democrats didn’t push their map to the limits, they still unquestionably engaged in partisan gerrymandering by turning the 6th District from red to blue.
In an important 2004 case on this topic called Vieth v. Jubelirer, Justice Anthony Kennedy, as the deciding vote, refused to strike down the map at issue on the grounds that it represented an unfair partisan gerrymander. (The liberal justices all would have invalidated the map; the conservatives would have kept it.) However, Kennedy effectively opened the door for future challengers if they could ever come up with a new standard for evaluating such claims—a standard that would have to satisfy the court’s perennial swing justice.
The Supreme Court heard arguments in October in a widely publicized case against a GOP gerrymander in Wisconsin called Gill v. Whitford. These two cases could thus both reach a resolution sometime next year. However, while plaintiffs in both cases have carefully calibrated their arguments to appeal to Kennedy, they’re each taking distinct approaches. These differing legal theories could be pivotal to each case’s chance of success and could lead to dramatically different outcomes if they wind up getting applied to maps nationwide.