Nation

Justices to hear major challenge to partisan gerrymandering

WASHINGTON — The Supreme Court announced Monday that it would consider whether partisan gerrymandering violates the Constitution, in a case that could reshape US politics.

In the past, the court has struck down election maps as racial gerrymanders that disadvantaged minority voters. But it has never disallowed a map on the ground that it was drawn to give an unfair advantage to a political party.

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Some justices have said the court should stay out of such political disputes entirely. Others have said partisan gerrymanders may violate the Constitution. Justice Anthony M. Kennedy has taken a middle position, and the case could turn on his vote.

The court is quite likely to be closely divided when it hears arguments next fall. Not long after the court agreed to hear the case, it issued an order suggesting as much.

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The order granted a request to stay a decision by a lower court, which had struck down a legislative map as an unconstitutional partisan gerrymander, while the Supreme Court considers the case. The court’s four liberal members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — dissented. Kennedy was in the majority.

In a 2004 concurrence, Kennedy wrote that he might consider a challenge to political gerrymanders if there were “a workable standard” to decide when they crossed a constitutional line. But he said he had not seen such a standard.

The challengers in the new case say they have found a way to separate partisanship from the many other factors that influence how districts are drawn.

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The case arrives at the court in the wake of Republican victories in state legislatures that allowed lawmakers to draw election maps favoring their party.

The case started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time in more than 40 years. It was a redistricting year, and lawmakers promptly drew a map for the state Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities.

In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.

Last year, a divided three-judge US District Court panel ruled that Republicans had gone too far. The map, Judge Kenneth F. Ripple wrote for the majority, “was designed to make it more difficult for Democrats, compared with Republicans, to translate their votes into seats.”

The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering.

In a separate case Monday, the Supreme Court ruled that several high-ranking Bush administration officials may not be sued for policies adopted after the attacks of Sept. 11, 2001.

The officials include John Ashcroft, the former attorney general, and Robert Mueller, the former FBI director who is now investigating possible links between the Trump administration and Russia.

The case began in 2002 as a class action filed by mostly Muslim immigrants over policies and practices that swept hundreds into the Metropolitan Detention Center in Brooklyn on immigration violations shortly after the attacks. The plaintiffs said they had been subjected to beatings, humiliating searches and other abuses.

The roundups drew criticism from the inspector general of the department, who in 2003 issued reports saying that the government had made little to no effort to distinguish between genuine suspects and Muslim immigrants with minor visa violations.

Kennedy, writing for the majority in the 4-to-2 decision, acknowledged that the way the detainees said they had been treated was appalling. But he said lawsuits seeking money from high-ranking officials were not the right way to address asserted misconduct in the midst of a national security crisis.

“If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic,” Kennedy wrote. “Nothing in this opinion should be read to condone the treatment to which they contend they were subjected.”

“The question before the court, however,” he wrote, “is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.”

The legal question for the court, he said, was whether a 1971 Supreme Court decision allowed suits for money against the officials said to have created the policy. The answer to that question, Kennedy wrote, was no.

Chief Justice John Roberts and Justice Samuel Alito joined all of the majority opinion in Monday’s decision, and Justice Clarence Thomas joined most of it.

Three members of the court did not participate in the decision: Justice Neil Gorsuch, who had not yet joined the court when the case was argued and Sotomayor and Kagan, who recused themselves.

Sotomayor used to be a judge on the appeals court that heard the case, and Kagan formerly served as US solicitor general.

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