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By Pete Williams
WASHINGTON – The Supreme Court seemed unlikely on Tuesday to rule that federal courts have a role in deciding how much partisanship is too much when state legislators draw the cards to the electoral districts.
Earlier, the court has said that because redistricting is essentially a biased political act, it would be impossible to determine when partisan gerrymandering became unconstitutional. Based on Tuesday's courtroom argument, a majority of the judges have not been convinced that there is a way around this problem.
The court heard challenges to congressional redistricting plans, locked in favor of the Republicans in North Carolina, and it provided an extra place for Democrats in Maryland.
The two latest justice, both appointed by President Donald Trump, said that the Supreme Court should be particularly reluctant to open the door to challenges based on excessive partisanship, as several states adopt methods such as redistricting commissions that take the charter away from the law.
"I have no doubt that extreme partisanship is a real danger in our country," said Justice Minister Brett Kavanaugh. "But there is a lot of activity in the states to deal with it."
Justice Neil Gorsuch expressed a similar concern. "Why should we go into this when there are alternatives?"
After the 2010 census, North Carolina's lawyer drafted a map designed to maintain the partisans' breakdown of the state's congressional delegation – 10 Republicans and three Democrats. More justice on Tuesday called it an extreme example of partisan gerrymandering.
"I understand that this is an extreme case," said chief lawyer John Roberts. "But we must find a rule that applies to other states" to determine when partisanship is so obvious that it crosses a constitutional line.
Justice Stephen Breyer suggested a way to identify the worst examples. His test would say a line crossed when a minority political party ends up with two-thirds of a state's congressional ground. But there seemed to be no takers among his colleagues.
The court also faced a challenge to the recovery of Maryland's 6th Congress District in 2011, allowing Democrats to take over a seat in the house, held by Republican Roscoe Bartlett for two decades.
Several of the more liberal members of the court said they were open to finding a way to knock down exaggerated examples of partisan gerrymandering. As it stands now, Elena Kagan said: "We are leaving it to the professional politicians who are interested in continuing their own representation."
But Paul Clement, a Washington lawyer representing North Carolina's lawyer, warned the judges to get out of other guessing states on how to do their re-district. "If you come into this business when you get into the political thickness, you will never come out."
The court's five conservatives seemed to agree. A decision in the two cases will be issued by the end of June.