The Connecticut Supreme Court gave no sign Thursday of a willingness to heed pleas by Republicans to take on the political task of overhauling a congressional map that has produced only Democratic victories since 2008.
The justices asked no questions in a 27-minute hearing, declining to engage in a debate over whether the court should take a more aggressive role when a legislative impasse gives them the final word on redistricting.
As a result, it is likely that Connecticut’s congressional map will continue to feature the “lobster claw,” the product of a bipartisan map drawn 20 years ago to serve the interests of two incumbents, a Democrat and a Republican left in the same district when the state lost one of its six seats.
Following the court’s directive to make only the changes necessary to equalize the population of the five districts, a special master has produced a map barely changed from the old one.
“This court gave clear, unequivocal, very precise directives to the special master on how to prepare a reapportionment plan,” said Aaron Bayer, a lawyer for Democrats on the commission. “The special master followed those directives meticulously and produced a plan that complies in every respect with this court’s order. The court should adopt the plan that the special master has recommended.”
Proloy K. Das, a lawyer representing Republicans, argued that the court was incorrect in the deference given to the 2002 map, the last one produced by the legislature’s bipartisan Reapportionment Commission.
Such deference is required when a court is considering a challenge to a map produced by the commission, but not when the commission deadlocks as it did after the 2010 and 2020 censuses, Das said.
The Connecticut Constitution gives responsibility for redistricting to the court when the Reapportionment Commission fails to produce a plan. It is silent on what criteria the court should follow.
“The exact words are ‘establish a plan of redistricting.’ And it’s in that capacity this court must draw the best and fairest map for our electorate,” Das said. “And it’s the only way we can fix the current gerrymandered lobster claw that defines our present map.”
Das said the status quo favors Democrats, and they never will agree to a more compact map if they know an impasse will shift the task to a court forever committed to doing nothing more than minimal changes.
“The parties will never reach an agreement,” Das said. “We’ll reach gridlock, and we’ll be back here, because the party that’s advantaged, a party that has a map that produces 5-0 in favor of one party, has no incentive to change.”
Bayer acknowledged that the constitution clearly grants broad authority to the court once the commission deadlocks.
“But it doesn’t direct this court to step in and replicate the political process,” Bayer said. “It doesn’t direct this court to use traditional redistricting principles to start from scratch and remake the map, move hundreds of thousands of voters into new districts.”
Das drew inspiration from an unlikely source. Addressing a court wholly appointed by two Democratic governors, Das quoted one of the U.S. Supreme Court’s liberal justices, Elena Kagan, from her withering dissent in a gerrymandering decision delivered in 2019:
“These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”
But he also noted that the 5-4 majority in the case, Rucho v. Common Cause, the U.S. Supreme Court held that federal courts lack jurisdiction to adjudicate claims of political gerrymandering, but it was up to state courts to address them based on their constitutions.
“The remedy lies in state courts,” Das said.
Connecticut’s map must be redrawn because it produces only Democratic victories, even though Republican candidates garner as much as 47% of the total vote, Das said.
Bayer said that thinking was flawed.
The map produced Republican victories in three of the five districts in the 2002 and 2004 elections, and the Republican candidate for governor carried the 2nd and 5th districts in 2018.
“That has to do with candidates,” Bayer said. “That bespeaks competitive districts, not uncompetitive districts.”
The U.S. Supreme Court case Das cited was about partisan gerrymandering, the product of maps produced in states where the dominant party could tilt the map. Bayer said that was not relevant in Connecticut, where the process is bipartisan.
The map now opposed by Republicans was a political compromise, drawn to establish a competitive district where two incumbents from opposite parties could have a fair fight.
Bayer conceded the resulting map isn’t pretty.
“It doesn’t mean it’s illegitimate. It means that that is how political compromise happens,” Bayer said. “It’s not always clean and neat. It’s often messy.”
The justices sat silently during the arguments. The only comment from the bench came at the end.
“Thank you, counsel,” Chief Justice Richard A. Robinson said. “This argument was very helpful, appreciate it.”