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The Supreme Court strongly divided the question of whether there is any limit to what courts may impose on partisan redistricting, also known as gerrymandering, with Justice Minister Brett Kavanaugh, the latest judge, at least somewhat contradictory.
"I took some of your argument in the panties and the amicus threats to be so extreme partisan gerrymandering is a real problem for our democracy," Kavanaugh told the lawyers who argued for case, "and I'm not going to dispute that."
On Tuesday, the court considered challenges for congressional district maps in North Carolina, designed by Republicans and in Maryland, designed by the Democrats.
The issue of how political borders are drawn has taken increased importance for both parties over the last decade.
After the 2010 Middle Ages, the Republicans used their control over many state legislators to draw favorable congress cards for the GOP. An analysis this month by the Associated Press found that the Republicans probably won about 16 more seats in the fall than they would have expected to base on their share of the vote because of these lines. Nevertheless, the Democrats have gained control of Parliament.
One of the house's highly-profiled pieces of legislation would require states to use independent redistricting commissions for congressional districts.
Kavanaugh, a Republican living in Maryland, was active in the issue and seemed to show openness to the idea of drawing biased district lines is a real problem.
"Is proportional representation not a legally justifiable standard?" Kavanaugh asked Paul Clement, the prominent conservative lawyer who defends Republican redistricting in North Carolina.
"Now it is – it's – it's a difficult standard," Clement replied. "It would require answering some questions about where it is baseline – what choices do you get from baseline, but it could be manageable."
Kavanaugh's next question: "Why can't the equality clause be interpreted to require anything similar to proportional representation?"
Clement noted that the authors' authors gave state legislators the power to draw districts.
Whether or not Kavanaugh is actually a swing voice, it is some guess. He replaced retired justice Anthony Kennedy, who really was a swing vote on the issue of partisan gerrymandering.
Kavanaugh could have played the devil's lawyer as justice is sometimes inclined to do; he simply could not be willing to close the door immediately, in his first court order, on a problem he seems to recognize is a real problem; or he is actually interested in finding some limits to partisan gerrymandering.
Kavanaugh also asked exploratory questions about lawyers arguing against the way the state left the districts. Making the case against North Carolina was attorney Emmet Bondurant, who opened his argument with this: "This case involves the most extreme partisan gerrymander to rig congressional elections that have been presented to this court since single-person / one-vote cases."
Bondurant, 82, argued the Supreme Court case, which stated that the congressional districts should contain the same number of people in 1964 – when he was 26.
North Carolina's card was knocked down by a federal court in 2011 because it decided that the card was shaken by race, which is not allowed. So the state's GOP legislature approved almost the same card this time members said on the basis of political affiliation so as not to be considered racially motivated.
Bondurant argued that the North Carolina legislature's defense is well incomprehensible.
"They take a stand, no matter how predominantly intent," said Bondurant, "no matter how extreme the effects there are absolutely no constitutional restrictions on the partisan gerrymander."
In short, the North Carolina lawyer's card is so open – and extremely politically – Bondurant argued that the state Republicans essentially say there are no limits to partisanship in redistricting.
Kavanaugh grabbed Bondurant's use of the word extreme – and pushed him to what he sees as a potential boundary.
"When you use the word," Kavanaugh said, "when you use the word" extremely, "it means a baseline. Extremely to what?"
"In this case, it is extremely compared to any statistical application of neutral redistricting principles in connection with the political geography of North Carolina," Bondurant replied.
He quoted randomized maps drawn by Jowei Chen, a state science professor and electoral expert at the University of Michigan and noted that North Carolina's gerrymander was " No chance of chance. You can only achieve this by making the partisan advantage the predominantly motivation. "
However, the justification continued to press Bondurant for a widely applicable standard. Conservative Justice Neil Gorsuch has also held independent commission referendums approved by some states as an alternative.
But Bondurant noted that "the vast majority of states east of the Mississippi, including specifically North Carolina, do not have a citizens' initiative." And state legislators have to ratify these voting initiatives, so "it's not an effective means," he noted.
For example, Republican government Larry Hogan has tried and failed four times to bring such an initiative in Maryland, where Democrats have checked how district lines are drawn.
Bondurant argued for the use of statistical models and mapping that resulted in finding a line for fair maps.
Justice Sonia Sotomayor noted: "[T] his reality is with all statistical models – and we use our lives based on them. Insurance is paid on statistical models. Health insurance premiums are based on statistical models."
Even nuclear power plants she notes that they are based on statistical models.
Justice Stephen Breyer, however, faced a key problem with how the judges would probably try to make a decision.
"[T] his problem, I think your site all this morning must deal with," said Breyer, "is from this side of the bench, for some people to look at the previous cases, there is Great concern that unless you have a very clear standard, you will turn many many choices in the United States to the judges. "
And if there is one thing that the Supreme Court's justice will do is stay out of politics.
Clemen's understanding of this makes it so adjustable: "[O] When you get into the political thickness, you will not come out, and you will lapse the image of that court for the other cases where it requires this reputation of independence so people can understand the fundamental difference between judgments and all other policies. "