Last year, proponents of limiting partisan politics in the creation of electoral districts needed to win over Justice Anthony Kennedy. They couldn’t.

The issue is back before the Supreme Court again, with arguments on Tuesday, and it might be harder than ever to convince the justices to rein in the practice known as partisan gerrymandering, designing districts to benefit one political party.

A new round of redistricting awaits after the 2020 census, and the court’s decision could help shape the makeup of Congress and state legislatures over the next 10 years.

With Kennedy retired, the question is whether federal courts will remain open at all to complaints about political line-drawing.

“The question of what the outcome will be in light of recent changes in the membership of the Supreme Court is anybody’s guess,” said Seth Waxman, the former lead high court lawyer in the Clinton administration and a supporter of limits on drawing districts for partisan gain. Justice Brett Kavanaugh is in Kennedy’s seat.

Chief Justice John Roberts is now the court conservative closest to the center and the focus of the arguments for reining in partisan redistricting, said Michael Kimberly, the lawyer for Republican voters who challenged a Democratic congressional district in Maryland.
“The concern now is persuading him,” Kimberly said, acknowledging Roberts’ skepticism about the court’s involvement in the issue during arguments last term.

Critics of partisan manipulation of electoral maps say that when one party controls redistricting, it can exaggerate and entrench its power, even in states that are otherwise closely divided between Republicans and Democrats.

Republicans were the big beneficiaries of the most recent round of redistricting in 2011, following the once-a-decade census, because they scored resounding victories in the 2010 elections.

The court has before it two cases, from Maryland and North Carolina, with strong evidence that elected officials charged with drawing and approving congressional districts acted for maximum partisan advantage. In North Carolina, Republicans ran the process and sought to preserve a 10-3 split in the congressional delegation in favor of the GOP, even as statewide races are usually closely divided. In Maryland, Democrats controlled redistricting and sought to flip one district that had been represented by a Republican for 20 years.

Both plans succeeded and lower courts concluded that the districts violated the Constitution.

Bolstering those court outcomes were the candid appraisals by former Maryland Gov. Martin O’Malley, a Democrat, and North Carolina state Rep. David Lewis, a Republican, of the critical role politics played in redistricting.