The Supreme Court announced on Friday that it will hear challenges to two aggressive partisan gerrymanders — one created by Democrats in Maryland and another by Republicans in North Carolina.
The Maryland case is Lamone v. Benisek. The North Carolina case is Rucho v. Common Cause.
This will mark the second term in a row where partisan gerrymandering is the marquee issue on the Court’s docket. Last June, the Court punted on two gerrymandering cases — the Maryland challenge and a different case out of Wisconsin — effectively delaying resolution of this issue until after Justice Anthony Kennedy left the Court.
Kennedy’s loss is likely to have devastating consequences for opponents of gerrymandering. In 2004, four conservative members of the Supreme Court rejected a challenge to Pennsylvania’s congressional maps in Vieth v. Jubelirer, with all four joining an opinion by Justice Antonin Scalia arguing that federal courts should not be hearing partisan gerrymandering disputes at all.
Kennedy provided the fifth vote to uphold the Pennsylvania maps, but his separate concurring opinion left open the possibility that he could strike down partisan gerrymanders in a future case. And, indeed, Kennedy initially appeared likely to rule against such gerrymanders last term.
But Kennedy decided not to decide this issue, and his seat is now held by Brett Kavanaugh, a far more conservative judge who is unlikely to vote against partisan gerrymandering.
Although the Court took two cases, one of which involves a Democratic gerrymander, gerrymandering currently favors Republicans nationwide because the GOP performed well in 2010 — the last year before a redistricting cycle. Once a party locks in an aggressive gerrymander in a particular state, moreover, that gerrymander is difficult to dislodge.
After the Supreme Court permitted Wisconsin’s gerrymander to remain in place last June, for example, Democratic state assembly candidates won 54 percent of the popular vote in the 2018 elections. Nevertheless, Republicans won 63 percent of the state assembly seats thanks to the Republican gerrymander in that state.
During his confirmation hearing last year, Kavanaugh appeared to threaten revenge against Democratic senators who probed credible allegations that he tried to rape future psychology professor Christine Blasey Ford when the two were in high school.
“As we all know in the political system of the United States in the early 2000s,” Kavanaugh told these Democrats, “what goes around comes around.”