WASHINGTON — Justice Anthony M. Kennedy has long been troubled by extreme partisan gerrymandering, where the party in power draws voting districts to give itself a lopsided advantage in elections. But he has never found a satisfactory way to determine when voting maps are so warped by politics that they cross a constitutional line.
After spirited Supreme Court arguments on Tuesday, there was reason to think Kennedy may be ready to join the court’s more liberal members in a groundbreaking decision that could reshape American democracy by letting courts determine when lawmakers have gone too far.
Kennedy asked skeptical questions of lawyers defending a Wisconsin legislative map that gave Republicans many more seats in the State Assembly than their statewide vote tallies would have predicted. He asked no questions of the lawyer representing the Democratic voters challenging the map.
There was something like consensus among the justices that voting maps drawn by politicians to give advantage to their parties are an unattractive feature of American democracy. But the justices appeared split about whether the court could find a standard for determining when the practice was unconstitutional.
“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr., “but if we are going to impose a standard on the courts, it has to be something that’s manageable.”
Some of the court’s more liberal members said the problem represented a crisis for democracy and that the Supreme Court should step in.
“What’s really behind all of this?” Justice Ruth Bader Ginsburg asked. She answered her own question: “The precious right to vote.”
In extended remarks, Chief Justice John G. Roberts Jr. worried that the court’s authority and legitimacy would be hurt were it to start striking down voting districts in favor of one political party or another. “That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country,” he said.
The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party wins an outsize number of seats. The court has, however, left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.