As Brett Kavanaugh proceeds through an FBI investigation, a partisan war, and a scathing court of public opinion, the world seems to have forgotten the institution he is headed toward - the Supreme Court.
Shorthanded by one, with a bench of eight, the court started its 2018-’19 session Monday. Its current roster of cases may not sound very exciting to some (the fate of an endangered frog vs landowners), but three major partisan gerrymandering cases hit the Supreme Court during its last session and they may be back again for this one.
The results of these cases out of North Carolina, Wisconsin and Maryland could draw a very thick line in the constitutional sand over the creation of electoral maps and the length the judiciary will go to keep partisanship out of it.
Back in June, SCOTUS pushed off a precedent-setting decision on the constitutionality of North Carolina’s partisan gerrymandered electoral maps that were designed to favor Republicans over Democrats. A US District Court ruled that the map’s partisan slant violated the First Amendment and the Constitution’s guarantee of equal protection under the Fourteenth Amendment.
Judge James Wynn wrote:
“The Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others.”
And while it was ruled unconstitutional, there is “insufficient time… to approve a new districting plan and for the State to conduct an election using that plan.”
The state filed a request to appeal the district court’s decision. The plaintiffs have 30 days to respond. And if the court is responsive, oral arguments could be heard as late as next spring.
SCOTUS also kicked the can down the road in Wisconsin and in Maryland gerrymandering cases - but for different reasons.
The Supreme Court sent a Wisconsin gerrymander case back to a lower court, stating that the Democratic plaintiffs had to prove that the Republican-drawn redistricting maps directly impacted individuals. Democrats went back to the drawing board and have just added 28 additional plaintiffs to the lawsuit who claim that they were, in fact, individually impacted or were injured.
SCOTUS also rejected a case against Democrats brought by Republicans in Maryland. Plaintiffs asked the court to overturn a district court decision not to block Maryland from holding congressional elections using a 2011 map, which would force the state to redraw the sixth district. Republican voters in the state argued that Democrats drew the district lines to dilute their voting power.
SCOTUS said the plaintiffs waited six years too long to seek redress. On Thursday, a district court will hear arguments from both sides over their interpretation of SCOTUS’s findings which could kick the case back to the high court.
According to Senate Majority Leader Mitch McConnell, the final vote to move Judge Kavanaugh through the Senate and onto the Supreme Court will take place this week, pending the close of the FBI's investigation. The court has around 23 cases to hear before December, but the docket is reasonably open after that.
So if he is ready to hear cases, and issue decisions, we could see these gerrymandering cases go before before a 5-4, conservative-dominated court.