On March 21, the U.S. Supreme Court heard oral argument in Wittman v. Personhuballah about whether Virginia’s 3rd Congressional District, as drawn by the Republican-controlled legislature in 2012, was an unconstitutional racial gerrymander.

The Brennan Center for JusticeThe disputed map was struck down twice by a federal three-judge panel before the court adopted a revised congressional map earlier this year. Virginia is no longer defending the original district map, but a group of current and former Republican lawmakers appealed, asking the Supreme Court to restore the original district lines ahead of the June congressional primary.

During argument, the Supreme Court’s liberal justices appeared skeptical of the Republican challengers’ arguments. Justice Ruth Bader Ginsburg questioned how they could claim the maps were drawn primarily to benefit Republicans and incumbents when the drafter of the original map testified that “[h]e didn’t take into account partisan performance” but instead simply decided that at least 55 percent of the voting population in the 3rd District should be African American. Justice Elena Kagan pushed further, questioning the premise of whether drawing districts for partisan advantage could be a permissible objective when it so clearly implicates race.

On the other hand, the conservative justices seemed to wrestle with whether the Court should intervene in such a partisan fight. Chief Justice John Roberts asked how it is possible to determine legislative motive if “10 percent of the legislators say this is because of race — that’s their motive — 10 percent say it’s because of partisanship and 80 percent say nothing at all.”  Justice Anthony Kennedy pressed the lawyers on the issue of incumbency, raising questions about whether protecting incumbent legislators was a legitimate goal in redistricting.

If the justices split four-to-four in this case, a scenario made possible by the current vacancy on the Court, it would uphold the lower court decision that threw out Virginia’s 3rd Congressional District as a racial gerrymander.