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WASHINGTON – A divided supreme court came back on the issue of gerrymandering supporters Tuesday, wondering for the second time in two years whether establishing voter cards to help the ruling party ever violated the Constitution.
Judge Brett M. Kavanaugh, the last member of the court and the deciding vote, expressed his concern about this practice.
"Extreme partisan manipulation is a real problem for our democracy," he said. "I will not dispute that."
He added, however, that recent developments within the nation – including state voting initiatives creating non-partisan redistribution commissions, bills proposed by Congress, and Supreme Court decisions – could less necessary action of the US Supreme Court.
"Have we really arrived at the moment when we would have trouble intervening, even if the other actors can not do it?", He asked.
Judge Kavanaugh was an extremely active participant in Tuesday's arguments, asking in-depth questions to both parties and displaying a particularly detailed familiarity with the geography and constituencies of Maryland, his home country. But his record as a judge of the court of appeal provides some guidance on how he will approach the issue.
The other judges seemed largely ideologically divided, with the more conservative fearing to announce constitutional limits to partisan gerrymandering and the more liberal willing to try.
There has certainly been no consensus on how to develop a legal standard that separates acceptable partisanship from unconstitutional partisanship. Judge Stephen G. Breyer proposed a digital test, but it did not seem to gain ground among his colleagues.
Judge Neil M. Gorsuch, after hearing the draft standard from a lawyer, said it was like saying, "I know it when I see it."
Last year's cases in Wisconsin and Maryland referred to the possibility that the court would decide for the first time that certain electoral maps were so distorted by politics that they went beyond the constitutional framework. Challengers had hoped that Judge Anthony M. Kennedy, who had expressed ambivalence on the subject, nevertheless seemed unable to find a viable constitutional test. Judges instead avoided the central issues in both cases.
On Tuesday, almost exactly a year after last reviewing the Maryland case, the court again heard the arguments of Republican voters who claimed that their rights had been violated by a congressional district supposed to reduce their electoral power.
The court will also hear the arguments in a second challenge, that of the Democrats of North Carolina who said that the state convention card gave a majority of 10 to 3 Republicans despite very tight vote counts across the board. the whole country.
A decision that would limit partisan manipulation could transform US policy by reshaping the House's cards in many states, often, but not always, for the benefit of Democrats.
The Supreme Court ruled that racial gerrymandering can violate the Constitution. But he never canceled a voting card as an unconstitutional gerrymander political party.
The court's decision to hear the new partisan gerrymandering protests did not reveal any particular enthusiasm for solving the problem. Although the court has almost complete discretion to decide on the opportunity to hear most types of cases, Congress has provided an exception for some election-related litigation. In these cases, Supreme Court control is anything but mandatory.
Several judges stated that the conduct of the legislators in the two cases before them was particularly revealing, leaving no doubt that their objective was to obtain a partisan advantage.
The Maryland case, Lamone c. Benisek, No. 18-726, was introduced by Republican voters who stated that lawmakers of the Democratic State had redrawn a district to retaliate against citizens supporting its owner, representative Roscoe G. Bartlett, republican. According to the complainants, these reprisals violated the first amendment by diluting their electoral power.
Bartlett won his 2010 race with a margin of 28 percentage points. In 2012, he lost to Rep. John Delaney, a Democrat, by a margin of 21 points.
Last year, after the Supreme Court had referred the case to the United States District Court in Maryland, a panel of three judges of that court ruled for challengers, banned state officials from holding new congressional elections using the 2011 cards and ordered them to draw new ones.
The members of the panel did not agree on the legal theories that apply exactly, but the three judges said partisan manipulation was pernicious.
"The widespread nature of arbitrary manipulation in modern politics is accompanied by the almost universal absence of those who will defend its negative effects on our democracy," wrote Judge Paul V. Niemeyer, citing a previous judgment in this case. "Indeed, both Democrats and Republicans have decried it when they are wielded by their opponents, but still continue to undo in their own interest when they have the opportunity." "
"The problem is cancerous," he wrote, "undermining the fundamental principles of our form of democracy."
The second case, Rucho c. Common Cause, No. 18-422, is an appeal from a decision rendered in August by a panel of three judges of a federal district court in North Carolina. The ruling concluded that Republican legislators had violated the constitution by causing districts to undermine the electoral chances of Democratic candidates.
The judges noted that the legislator responsible for drawing the map had not concealed his intentions. "I think it's better to elect Republicans than elect the Democrats," said lawmaker, Rep. David Lewis, a Republican. "So I drew this map to help promote what I think is better for the country."
The plan worked. In 2016, the court said Republican congressional candidates won 53% of the vote. But they won in 10 of 13 congressional districts, 77% of them.
By 2018, the statewide vote was split roughly evenly, but the Democrats again got only three seats. (As a result of evidence of election fraud and the death of a long-time incumbent, two seats are open.)
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