Reopening a deeply divisive controversy that has troubled the Supreme Court for 32 years, four state legislators from North Carolina have urged the Justices to bar all constitutional challenges to partisan gerrymandering. The decades-long search for a way to judge the constitutionality of election maps that give one party’s candidates a clear advantage at the polls has been “an exercise in futility,” the state lawmakers argued. The time has come to end that search altogether, according to the appeal in the case of Rucho v. Common Cause. The document has just become available publicly. If the Court were to do as asked, legislators with control of their chambers would have no limit on how far they could go to create for their party an enduring domination of seats in state legislatures and even in the U.S. House of Representatives. The only realistic remedy would be for the people of a state to take the task of drawing new districts away from the legislature, or — ultimately — for the nation to amend the Constitution.
The timing of when the Supreme Court acts on the new appeal could be crucial. At present, with one seat vacant on the Court since Justice Anthony M. Kennedy’s retirement last summer, it appears that there are four Justices who are deeply skeptical about challengers to partisan gerrymandering and four Justices who are keenly interested in finding ways to clearly restrain it under the Constitution.
If the Court were to deal with the new case with only eight Justices, it might well split 4-to-4, which would postpone a constitutional reckoning for weeks if not longer.