Protesters join others in a rally for fair elections, outside the U.S. Supreme Court in Washington, Oct. 3, 2017.
Protesters join others in a rally for fair elections, outside the U.S. Supreme Court in Washington, Oct. 3, 2017.

WASHINGTON - The U.S. Supreme Court plunged into the politically messy issue of redrawing congressional and legislative districts Tuesday, in a case that could have profound implications for both major political parties for years to come.

The high court heard oral arguments in a case brought by Democratic voters in Wisconsin. They argued that a Republican redistricting plan for the state assembly was so overtly partisan that it violated constitutional protections of freedom of speech and equal protection under the law for Wisconsin voters.

A lower federal court sided with the challengers last year and against Republican state officials in Wisconsin. Officials argued Tuesday that they had not violated any constitutional rights when they drew up new boundaries for state assembly districts. "Our legislature followed traditional redistricting criteria, which is what they have been required to do and we think they followed that and that the justices will agree," Wisconsin Attorney General Brad Schimel told reporters in front of the court following the oral arguments.

Former California Gov. Arnold Schwarzenegger speak
Former California Gov. Arnold Schwarzenegger speaks at a rally outside the U.S. Supreme Court in Washington, Oct. 3, 2017. The Supreme Court heard arguments in a case about political maps in Wisconsin that could affect elections across the country.

The gerrymander game

The process of state legislatures redrawing congressional and legislative district boundaries has been enmeshed in politics for two centuries. Early on, the process was referred to as “gerrymandering,” where one party or the other tries to gain an electoral advantage by redrawing district boundaries to maximize their voting clout.

Republicans have had success in several states in redrawing congressional and legislative voting districts and that has helped them maintain their majority in the House of Representatives. Democrats have come under fire as well for partisan maps in states where they control the legislature, like Maryland and Massachusetts.

FILE - U.S. Supreme Court Associate Justice Ruth B
FILE - U.S. Supreme Court Associate Justice Ruth Bader Ginsburg arrives to watch U.S. President Barack Obama's State of the Union address to a joint session of Congress in Washington, Jan. 12, 2016.

A divided high court

During Tuesday’s oral arguments, the more liberal high court justices seemed open to the case brought by Democratic voters. Justice Ruth Bader Ginsburg said a ruling in favor of the Republican districting plan in Wisconsin would encourage others to stack the deck against their political opponents. “What becomes of the precious right to vote?” Ginsburg asked during the one-hour session.

The high court’s more conservative members expressed reservations about becoming involved in political disputes related to the redrawing of voting districts. Chief Justice John Roberts was concerned that the court could become drawn into an endless number of partisan redistricting claims from around the country. “We'll have to decide in every case whether the Democrats win or the Republicans win,” Roberts said.

Wisconsin Solicitor General Misha Tseytlin argued on behalf of Republican officials in the state and dismissed claims by the Democratic plaintiffs in the case as “scare tactics.”

Supreme Court Roberts
Chief Justice John Roberts prepares to speak at the University of Kentucky in Lexington, Feb. 1, 2017.

Measuring partisanship

In the past, the high court has stepped in and invalidated state electoral maps on the grounds of racial discrimination. The justices, however, have never intervened when one side or the other simply claimed a partisan advantage. Whatever decision the court makes is likely to have a major impact on the redistricting process for decades to come.  

A high court decision is not expected until early next year and could rest on the vote of Justice Anthony Kennedy, known as the court's key swing vote on a number of highly charged issues. In a previous case in 2004, Kennedy did raise the possibility of being open to a legal standard to determine whether there is too much partisanship in the redrawing of voting districts. Kennedy wrote at the time that if standards “do emerge to measure these burdens,” then the courts “should be prepared to order relief.”

California’s former Republican governor, Arnold Schwarzenegger, was among those supporting the Democratic complaint in the Wisconsin case. Schwarzenegger spoke briefly to reporters outside the high court following the oral argument and urged the court to take action on gerrymandering. “As (Albert) Einstein said, ‘Those who created the problem will not be able to solve it.’ Because the politicians are interested in only one thing and this is to stay in power, to stay in power no matter what.”

During the oral argument, a few dozen demonstrators in support of the challenge from Wisconsin held a rally on the Supreme Court steps. They called for an end to the traditional partisan approach to redrawing voting districts with the chant:  “Hey, hey, ho, ho—gerrymandering has to go!”