In today’s over-heated partisan world, political gerrymandering of election districts has in many places become the norm rather than the exception. However, technology by way of newly created sophisticated computer software makes today’s partisan gerrymandering altogether different from the more crude partisan line drawing of the past. This fact, together with improved methods of collecting data on voters, has allowed political parties today to achieve the maximum number of safe seats through a gerrymander. And the practice is not just done by one particular party. Whatever party controls the present political wheels of a state government is likely to do it—and historically has done so.

This term, the Supreme Court has before it two cases raising the question of whether the Constitution imposes any limits on partisan line drawing. One of the cases is from Maryland involving a Democratic drawn election district, Maryland’s Sixth Congressional District. Lamone v. Benisek . The other case is from North Carolina involving a Republican drawn election district. Rucho v. Common Cause . Oral argument in both cases was held before the Court on March 26 and a decision is expected before the end of June.

Taken at face value during oral argument, the nine Justices appeared quite divided on the issue. For some, “over the top” gerrymandering designed to improve a particular party’s election prospects was both troubling and in need of correction. Others appeared to be reluctant to enter into the political arena, either fearing that the Court itself would inevitably appear to be taking political sides or that the political process itself would ultimately course correct without the need of judicial intervention. For still others, the question was “how much partisan dominance is too much,” in the words of retired Justice Kennedy. As a result, it is perhaps even more difficult than usual to predict how the Court will come out on the issue by the time of the ultimate decision.

After the oral argument before the Supreme Court, two separate lower three-judge federal courts struck down gerrymanders in Ohio and Michigan, ruling that the legislators’ political redistricting violated the Constitution. League of Women Voters v. Benson (ED Michigan, April 25, 2019); Ohio A. Philip Randolph Institute v. Householder (SD Ohio, May 3, 2019). In lengthy, detailed opinions, these courts may well have been sending a message to the Supreme Court that “the efficiency of today’s partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.” In the view of these judges, the core concern about partisan gerrymandering is that representatives choose their voters and not vice-versa—that is, when partisan gerrymandering amounts to a constitutional violation, the winners and losers are often already predetermined by those in power.

Moreover, these six judges are convinced that the courts ought not leave disfavored voters “at the mercy of advancing technology” when a party in power exploits that technology to draw district lines with the purpose and effect of imposing burdens on a disfavored party and its voters and to dictate electoral outcomes. When it can be shown that the predominant purpose of the challenged district was to “subordinate adherents of one political party and entrench a rival party in power” and when it can be shown that the plan had the effect of diluting the votes of members of the disfavored party, the result violates the Constitution unless the defendant party can present evidence that legitimate legislative grounds provided a basis for the way in which each challenged district was drawn.

It remains to be seen whether and to what extent these lower court opinions will influence the Justices on the Supreme Court. However, these judges have provided a roadmap to the Supreme Court as to exactly why partisan gerrymandering violates the Constitution and when partisan dominance is “too much.”