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NPR 2019-03-27

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Kavanaugh Seems Conflicted On Partisan Gerrymandering At Supreme Court Arguments

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Today, Justice Brett Kavanaugh seemed conflicted on whether the Supreme Court should place limits on partisan gerrymandering. That's the practice of drawing lines for districts to give one party a political advantage. Kavanaugh's vote could decide the case, as NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Kavanaugh, on most subjects, falls firmly into the conservative judicial camp. And he may well end up there, but today he was either playing devil's advocate or he's genuinely open to the court putting some brakes on the practice of extreme partisan gerrymandering. It's a practice that's grown exponentially in modern times, now that computers can generate tens of thousands of alternative redistricting maps with the push of a button. In North Carolina, a state divided roughly equally between Democratic and Republican voters, Republicans drew districts to give themselves the maximum partisan advantage. As David Lewis, the Republican chair of the state legislative redistricting committee put it...

(SOUNDBITE OF ARCHIVED RECORDING)

DAVID LEWIS: I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats.

TOTENBERG: In overwhelmingly Democratic Maryland, the Democrats did the same thing, openly manipulating the line drawing to eliminate one of the two safe Republican congressional seats. On the steps of the Supreme Court today, former California governor Arnold Schwarzenegger said that until his state enacted reforms, gerrymandering was so entrenched that over 10 years and 265 separate elections, party control switched just once.

ARNOLD SCHWARZENEGGER: There's more change over in the Politburo - in a former Politburo of the Soviet Union - than there was in California.

TOTENBERG: And Maryland's Republican governor, Larry Hogan, lamented that under his state's laws and the laws of most other states, such referenda are impossible.

LARRY HOGAN: Unlike California, we can't bring it to a referendum. We don't have that power in Maryland.

TOTENBERG: Inside the Supreme Court chamber, the questioning was predictable, with the court's liberals looking for a way to at least police the outliers in partisan gerrymandering and the conservatives generally uninterested - all except Kavanaugh. Perhaps it was all for show or because he hasn't handled a gerrymandering case before, but Kavanaugh's questions at least suggested an openness to the idea of the court getting involved.

Addressing one of the lawyers challenging the North Carolina redistricting, Kavanaugh said, I took some of your argument in the briefs to be that extreme partisan gerrymandering is a real problem for our democracy, and I'm not going to dispute that. But Kavanaugh went on to note that voters in more than a dozen states have, by referenda, adopted measures like California's, giving redistricting power to an independent commission. Since there's a fair amount of activity in this area going on in the states, he said, shouldn't the court stay its hand? No, replied lawyer Allison Riggs, representing the North Carolina challengers. These voters have zero power to put a referendum on the ballot, she said.

Indeed, most of the states east of the Mississippi have laws like those in North Carolina and Maryland that bar such ballot initiatives, making it all but impossible to change the system. Justice Gorsuch interjected to worry about getting the Supreme Court involved in policing such partisan decisions and what that might do to the court's reputation for political independence. While the reputation of the court for independence is important, replied Riggs, understand that on the facts of this case, the reputational risk to the court of doing something is much less than the reputational risk of doing nothing. This is not a problem that can correct itself, she added. The partisan bias in North Carolina is so baked in that no matter how large the Democratic turnout, it cannot surmount the way the district lines were drawn to concentrate the Democrats in three districts and dilute them elsewhere to preserve a maximum GOP 10-to-3 advantage.

But Paul Clement, representing the North Carolina GOP, also had a warning for the justices. Once you get into the political thicket, you will not get out, and you will tarnish the image of this court. Justice Ginsburg - that was exactly the same argument we heard before the one person, one vote decision decades ago. Nina Totenberg, NPR News, Washington.


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