Brett Kavanaugh could help curb partisan gerrymandering.

Since 2004, the Supreme Court has become angry at the problem of partisan manipulation without doing anything to stop it. In the last legislature, judges were supposed to finally declare whether legislators were breaking the Constitution when they manipulated constituency lines to rig elections – only to try to solve the problem. Judge Anthony Kennedy, the likely deciding vote in the case, then resigned, leaving the fate of gerrymandering in the hands of his successor, Judge Brett Kavanaugh.

On Tuesday, the court again heard about the challenges posed by political redistribution. There were few surprises – the judges have already experienced this – until Kavanaugh speaks in the second hour. And while it is far too soon for defenders to declare their victory, justice, a voter in Maryland, seemed genuinely troubled by the successful mapping effort to neutralize Republican voters. If Kavanaugh sided with the Liberals, the Supreme Court will finally impose real constitutional limits on this scourge of democracy.

In Tuesday's arguments, it was generally accepted that the applicants for voting rights in both cases, Common cause v. Rucho and Benisek c. Lamone, were condemned. Without Kennedy, according to this logic, there are simply not five voices to curb gerrymandering. Judges Clarence Thomas, Samuel Alito and Neil Gorsuch rejected the idea that federal courts should arbitrate redistricting. Roberts notoriously rejected the evidence that the lower courts used to characterize the gerrymanders as "gobbledygook sociological". (That's not the case.) Kavanaugh's view on gerrymandering is a mystery, but few expected him to make the decision that Kennedy would not do it and limit the practice. Instead, the five Conservatives seemed ready to declare partisan gerrymandering "unjustifiable," meaning that the courts can not regulate it because they do not have "legally manageable standards" to identify and correct illegal cards.

Rucho was the first case on Tuesday, a challenge at the North Carolina Congress card. (Republicans have a 10-to-3 advantage over Democrats and boast of having made their way to the margins.) For a moment, the arguments proved to be familiar: Judges Elena Kagan and Sonia Sotomayor roasted Paul Clement's defense against the gerrymander; Alito and Gorsuch helped support his argument. Kavanaugh asked some ambivalent questions. Does the Constitution require "proportional representation", a system in which parties win seats roughly proportional to the votes cast? Why should the courts intervene when some states solve the problem by creating independent commissions? (It does not matter that the Supreme Court has barely confirmed these commissions by a vote of 5 to 4 and can now abolish them.)

However, when Maryland's solicitor general, Steven M. Sullivan, approached the lectern to defend the gerrymander from his own state, Kavanaugh made more and more commitment. Sullivan insisted that the shape of the 6^th The district – a sprawling do-it-yourself of rural counties and wealthy suburbs – was not "heavily influenced" by "partisan politics," Kavanaugh seemed incredulous.

Kavanaugh seemed closer than Roberts to join Kagan's crusade and set limits to the "very extreme" gerrymanders.

"The stated goal was 7-1," he told Sullivan, meaning that Democratic politicians said they wanted to create seven democratic districts (including the sixth) and a single republican district. "I do not think you should flee the evidence." Kavanaugh then explored the geographical absurdity of the map, reminding us all that he is from Maryland.
("You have Easton grouped with Carroll County!"). He also challenged Sullivan's hypocrisy, noting: "You begin your presentation by saying that you consider partisan manipulations to be a threat to democracy." some Gerrymandering is bad, but not Maryland. Why not? "What should be the test" to distinguish a benign gerrymander from an evil one? Kavanaugh asked.

Michael Kimberly, who represents Maryland voters contesting the 6^th District, proposed a solution. He argued that today's gerrymandering supporters are in fact only a high-tech form of "official retaliation for political expression". The Supreme Court has already stated that the First Amendment prohibits reprisals against state employees, public contractors and prisoners for their political speech. This same principle should apply when legislators retaliate against voters because of their association with a political party. To create its current map, Maryland has released hundreds of thousands of Republicans from a long-standing district represented by a GOP MP simply because of their political affiliation. The remaining Republicans lost their ability to translate their votes into electoral success, and the district switched to democracy. In another context, such flagrant discrimination based on the point of view would be unconstitutional. Why is not it here?

It is not known whether Kavanaugh agreed with Kimberly's theory. But he seemed to appreciate the fact that it's simple and attractive – and that it separates ordinary gerrymanders from the worst of the worst. As Kagan pointed out, once the Supreme Court has begun to control redistricting, lawmakers will (probably) stop boasting about how they screwed up voters who support their opponents. At this point, it will become much more difficult to guess the unlawful behavior of legislators. intention retaliate against political expression. Complainants would need to "show really dramatic effects" – distorted districts, massively disproportionate results, and so on. – to infer an unlawful intention. Federal justice would not be swamped with abusive lawsuits; the courts would find sufficient evidence to invalidate a district only in rare and flagrant cases.

Kavanaugh did not seem entirely convinced by Kimberly or Kagan. Still, he seemed more open to discussion than Roberts, who was worried about the constitutional disadvantages of gerrymandering and then rejected possible solutions. It would be a mistake, however, to cancel one or the other vote of justice: far more than their Conservative colleagues, both acknowledged that political redistricting is a democratic anti-democratic. But Kavanaugh seemed closer than Roberts to join Kagan's crusade and set limits on "really extreme" gerrymanders.

At the end of Tuesday's debate, supporters of the right to vote had good reason to be optimistic. It would not be shocking if Kavanaugh and Roberts finally stick to their conservative instinct and close the doors of the federal courthouse to the Gerrymanism plaintiffs. But it is now clear that Kavanaugh and perhaps Roberts – both of whom live in Maryland's gerrymandered districts – are grappling with the ills of political redistribution. If one or the other leaves, they could ensure that the Supreme Court confers its most important victory in voting rights of the century so far.