WASHINGTON _ The Supreme Court on Tuesday will not have to debate whether a group of North Carolina politicians deliberately redrew election maps to give their party the maximum partisan advantage.
The state's Republican leaders admitted to doing exactly that.
Instead the question before the court _ for the second time in as many years _ is whether the high court believes extreme partisan gerrymandering is unconstitutional.
Led by Chief Justice John G. Roberts Jr., the court's conservatives are likely to decide redistricting is a matter left to elected officials, not federal judges.
Three years ago, Republican state Rep. David Lewis opened a state legislative session on redistricting by proposing to use the latest political data to benefit Republicans and "draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it's possible to draw a map with 11 Republicans and two Democrats."
Maryland's Democrats were nearly as blunt when they redrew districts, deciding they would shift more than 300,000 people to convert a solidly Republican district into a reliably Democratic one. They succeeded in creating a U.S. House delegation that had seven Democrats and only one Republican.
On Tuesday, the justices will hear appeals from the two states and consider whether gerrymandering _ no matter how partisan and one-sided _ can ever violate the Constitution and the rights of voters who believe they are cheated when politicians rig the outcomes. The cases are Rucho v. Common Cause and Lamone v. Benisek.
And the state lawyers are likely to find a friendly forum. Roberts is likely to seek to devise a procedural rule for throwing out the legal challenges to the congressional maps in North Carolina and Maryland.
Last year, the chief justice wrote an opinion that overturned a partisan gerrymander ruling against Wisconsin's Republicans. He said the Democratic voters who filed the suit did not have standing to challenge the statewide electoral map for its State Assembly. That ruling, in Gill v. Whitford, allowed the Wisconsin GOP to maintain a supermajority control of its state house, despite winning only 44 percent of the votes statewide.
In decades past, Justice Anthony M. Kennedy had left the door open to ruling that partisan gerrymandering was unconstitutional because it discriminated against voters due to their political views. But he never voted to strike down an election map as an unconstitutional partisan gerrymandering, and he retired last year shortly after the Roberts-led punt in the Wisconsin case.
With new Justice Brett M. Kavanaugh filling his seat, the chief justice may have a majority to rule that the power to redraw election districts is exclusively in the hands of state legislators.
That would be no surprise, since Roberts spelled out his view four years ago. He dissented when a 5-4 majority upheld independent commissions authorized by voters in Arizona and California to draw election districts. The chief justice pointed to a provision in the Constitution which says "the times, places and manner of holding elections" for members of Congress "shall be prescribed in each state by the legislature thereof."
Roberts said that meant only elected lawmakers may decide on election districts. "No matter how concerned we may be about partisanship in redistricting, this court has no power to gerrymander the Constitution," he wrote in dissent then.
