In both cases, the court was presented with different legal theories and ways to measure excessive partisanship. In both cases, questions and comments from the justices did not suggest they were anywhere near a legal standard--or a mathematical analysis -- that could be issued as the new law of the land. That absence of a clear remedy, or test, prompted Justice Stephen Breyer to suggest that the court ask all parties in these appeals -- and another case from North Carolina -- to submit another round of briefs, or analyses and arguments, and then hold another hearing to debate the "pros and cons."
"The people who do the gerrymandering are not stupid," Breyer said, noting that the problem is much bigger than a single House seat in Maryland.
"So what do we do? Just say good-bye? Forget it?" Breyer said, in remarks addressed to the most conservative justices, who have previously said that excessive partisanship is part of human nature and politics and shouldn't be regulated. "You've read these briefs [showing gerrymanders defy or overturn statewide popular votes]. If you think what's happened now is something, wait until you see those [map-making] computers really working."
Because the answer was not obvious, it's unlikely the Supreme Court will make a ruling later this spring that will affect 2018's congressional races. And it's not clear that the Supreme Court will issue any decision creating political fairness standards before the 2020 election cycle or 2021, when the next round of once-a-decade redistricting begins.
Why? If the Democrats retake the House this fall, it'll be the biggest midterm landslide since the 1974 elections, according to the Brennan Center. However, the court's conservative majority could say that epic turnaround was part of the "normal" pendulum swing of politics, even if that's not so. As the Brennan Center noted, Democrats face a very steep climb to retake the House.
"As of mid-March, Democrats held an average [popular vote] lead of nearly eight percentage points, 48-40," Brennan's extreme gerrymandering analysis said. "Based on historical election results, a lead of this magnitude should net Democrats around 30 additional seats -- comfortably more than the 24 they need to retake control of the U.S. House of Representatives. Because of gerrymandering, however, that is no longer the case. Even the court-ordered redrawing of Pennsylvania's congressional map will only improve Democrats' chances slightly."
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