Neil Gorsuch testifies at his confirmation hearing in 2017. Credit: Diego M. Radzinschi/ ALM

The U.S. Supreme Court on Tuesday appeared just as divided as it did a year ago over how to rein in excessive partisanship in redistricting, and nowhere was that more clear than in how Justices Neil Gorsuch and Elena Kagan reacted to each others' comments.

In Rucho v. Common Cause, North Carolina's Republican-controlled General Assembly intentionally drew district lines to preserve its 10-3 dominance of the state's congressional delegation even though Republicans captured just 53 percent of the statewide vote in 2016. A three-judge district court said the map was an impermissible partisan gerrymander.

But as the justices struggled during oral arguments with various tests for rooting out excessive partisanship, Gorsuch suggested that states themselves, through independent redistricting commissions, may be on the way to solving the problem.

“One of the arguments that we've heard is that the court must act because nobody else can as a practical matter,” Gorsuch told Kirkland & Ellis partner Paul Clement, counsel to the General Assembly. “I just happen to know my home state of Colorado this last November had such a referendum on the ballot that passed overwhelmingly, as I recall.”

Gorsuch continued: “I believe there are others and I'm just wondering, what's the scope of the problem here? I also know there are five states with only a single representative, right, in Congress, so presumably this isn't a problem there.”

Gorsuch said he sensed “a lot of movement” in the states in this area. Clement quickly agreed, saying, “That's exactly right.” And, he added, Congress also could act. The first bill, H.R. 1. on the agenda of the new Congress, noted Clement, contains a provision to “essentially force states to have bipartisan commissions,” although that may be unconstitutional.

Kagan quickly jumped on Clement's argument that the only constitutionally prescribed way of dealing with redistricting is in the hands of state legislatures, and she tied it into Gorsuch's comments.

“Going down that road would suggest that Justice Gorsuch's attempt to sort of say 'This is not so bad because the people can fix it,' is not so true because you're suggesting that the people really maybe can't fix it,” she said. “So Justice Gorsuch's attempts to save what's so dramatically wrong here, which is the court leaving this all to professional politicians who have an interest in districting according to their own partisan interests, seems to fail.”

In questioning the challengers to the North Carolina plan, Gorsuch also seemed to suggest that they would not be satisfied unless the court required proportional representation, which the court has said the Constitution does not require.

But Kagan didn't see the challengers' arguments that way. “The benchmark is not proportional representation,” she said. “The benchmark is the natural political geography of the state, plus all the districting criteria, except for partisanship.”

The challengers offered more than 24,000 potential redistricting maps for North Carolina, she added, and 99 percent showed that the 10-3 configuration was not the natural one. “It's just not the way anyone can district given the actual political geography on the ground, unless you absolutely try to overrule that political geography,” she said.

Justice Stephen Breyer testifies in 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Justice Stephen Breyer suggested a way to catch the extreme partisan gerrymanders, a baseline approach, but one that failed to get much traction.

If there is no independent commission, he said, and one party controls the legislature, a gerrymander is unconstitutional if the other party wins a majority of votes in the state, but the party in control gets more than two-thirds of the congressional seats.

In the North Carolina case as well as a second case involving a partisan gerrymander challenge to Maryland's 6th Congressional District, the challengers offered the high court a number of different tests for weighing partisanship, for example, a three-prong test examining intent, effects and durability of those effects.

In the end, the justices appeared divided along ideological lines in both cases on whether there is a manageable test for determining excessive partisanship and whether the court should be involved at all.

Emmet Bondurant of Atlanta's Bondurant Mixson & Elmore argued for the challengers to the North Carolina plan and he shared argument time with Allison Riggs of the Southern Coalition for Social Justice. In the Maryland case—Lamone v. Benisek—Maryland Solicitor General Steven Sullivan represented the state; Mayer Brown partner Michael Kimberly was counsel for the challengers.

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