Justice Kennedy is the key vote to ending partisan gerrymandering

The U.S. Supreme Court heard oral argument in Gill v. Whitford on Tuesday, in which the justices will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander.

From the oral argument transcript, it appears that Justice Anthony Kennedy is seeking an answer to end partisan gerrymandering, and he will be the decisive vote.  If so, he will be the author of the opinion in this case, and he will influence other redistricting cases from North Carolina, Virginia and Texas on the court’s docket.

Amy Howe of SCOTUSblog reports, Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?

The district court may have regarded this case as a “straightforward” one, but few justices seemed to share that sentiment today. That’s not particularly surprising, because the issue of partisan gerrymandering has deeply divided the Supreme Court in the past. Thirteen years ago, the justices rejected a challenge to Pennsylvania’s redistricting plan, with four justices agreeing that courts should decline to review partisan-gerrymandering claims, because it is too hard to come up with a manageable test to determine when politics plays too influential a role in redistricting. Four other justices would have allowed courts to review partisan-gerrymandering claims. That left Justice Anthony Kennedy, who agreed that the Supreme Court should stay out of the Pennsylvania case but suggested that courts could play a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found.

Before the justices got to the merits of the case this morning, they tackled another question: whether the plaintiffs have a legal right – known as “standing” – to challenge the 2010 map at all, particularly because some of them live in heavily Democratic districts. Kennedy (whom many regard as the key vote in the case) acknowledged that the plaintiffs could not point to a specific Supreme Court case in their favor, but he asked Wisconsin Solicitor General Misha Tseytlin whether the plaintiffs might have standing if their claims were grounded in the First Amendment, rather than a right to equal protection of the laws. Kennedy seemed to suggest that they would, telling Tseytlin that such plaintiffs would have a First Amendment interest in having their preferred political party be strong, rather than weak.

Chief Justice John Roberts seemed to disagree. He told attorney Paul Smith, who argued on behalf of the plaintiffs challenging the map, that allowing plaintiffs in a partisan-gerrymandering case to challenge an entire map seemed inconsistent with the court’s rule that plaintiffs in racial-gerrymandering cases can only challenge their own districts, not the whole map.

Smith countered that the two scenarios are different: In racial-gerrymandering cases, he argued, the claim does attack a specific district; by contrast, a plaintiff in a partisan-gerrymandering claim is challenging the dilution of one party’s votes statewide.

If five justices were to agree that the plaintiffs lack standing to challenge the whole map, it would allow them to avoid ruling on the merits of the case. But it does not look as though there are five votes for that outcome – especially if, as Kennedy’s comment suggests, he would allow the lawsuit to go forward. And so most of the one-hour argument today was spent on the substance of the case, and in particular on two closely related questions: Should the courts get involved in reviewing partisan-gerrymandering cases at all; and, if so, what standard should they use to review such claims?

Roberts made clear that, in his view, the Supreme Court should stay out – for the good of its institutional reputation. He told Smith that if the plaintiffs win, the courts would be flooded with partisan-gerrymandering claims, which would all wind up at the Supreme Court because, unlike in most cases, in which the court can choose which cases to review, the court is generally required to review redistricting challenges. For example, if the Supreme Court rules for the Democrats in a case, Roberts continued, most people will not understand that the decision rests on a complicated calculus. Instead, Roberts posited, the average person will say, “That’s a bunch of baloney,” and chalk the ruling up to a preference for the Democrats. And that, Roberts stressed, will cause very serious harm to the status and perceived integrity of the Supreme Court.

Smith pushed back, predicting that any potential harm to the Supreme Court’s reputation would pale in comparison with the harm to democracy if the state prevails. Partisan gerrymandering is already bad, he cautioned, but we are on the “cusp of a more serious problem” because officials drawing redistricting maps now have access to vast amounts of data, and because the electorate is now so polarized that voting has become more predictable than ever. If you uphold the Wisconsin map, he told Roberts ominously, the court will be confronted with a “festival of copycat gerrymandering,” and people will lose faith in democracy altogether.

Roberts was unconvinced, telling Smith that his rule would take democracy away from the legislatures based on social science “gobbledygook.” The court’s newest justice, Neil Gorsuch, was relatively quiet, but he appeared to show his cards when he asked Smith to name the source of the Supreme Court’s authority to revise state redistricting maps. The court should be cautious, Gorsuch emphasized, about stepping in here.

The plaintiffs seemed to find a more receptive audience in Justice Ruth Bader Ginsburg, who told Erin Murphy – arguing on behalf of the Wisconsin legislature – that the “precious right to vote” is at the heart of this case. If legislators can “stack” a legislature, so that the result of the election is “preordained,” she queried, where is the incentive for voters to actually go to the polls? “Society should be concerned,” Ginsburg concluded.

Justice Sonia Sotomayor voiced similar concerns. She asked Murphy whether it was okay for one party to “stack the decks, so that for 10 years,” it could garner a minority of the vote but still win a majority of the seats in the legislature.

But although the justices spent some time at the 50,000-feet level, contemplating the broader implications of their ruling, much of their time was spent in the weeds, on what Justice Stephen Breyer described as another “hard issue” in the case: If courts are going to get involved with partisan-gerrymandering cases, what are manageable standards that they can apply to evaluate the claims? Breyer offered Tseytlin a five-part test that looked at, among other things, whether one party controls the legislature and the redistricting process; whether the redistricting maps create “partisan asymmetry” – that is, they do not treat the different political parties equally; and whether that asymmetry is “persistent” and extreme. “I suspect,” Breyer told Tseytlin, that the test is manageable.

Justice Elena Kagan seemed to agree. She observed that, if the technology now available to legislators is so good that legislators can draw the maps easily, the same techniques can be used on the back end to evaluate what the legislature was considering when it was drawing the maps. This is not “airy fairy,” she stressed, but instead “pretty scientific.”

Not surprisingly, Tseytlin disagreed. He maintained that the Supreme Court had already rejected some of these kinds of inquiries in its earlier cases. And he repeated a theme that would resurface throughout the hour: Any “standards” that the court might articulate to evaluate partisan-gerrymandering claims would rely heavily on statistics and battles between each side’s experts.

Murphy picked up this theme, reminding the justices that the kinds of standards that the plaintiffs have proposed have identified “false positives” – districts that appear to be the result of gerrymandering but are not – 50% of the time. What, she asked rhetorically, are legislatures supposed to do when confronted with problems like these?

Justice Samuel Alito was also skeptical. He told Smith that, although everyone has been looking for a manageable standard, one of the theories on which the plaintiffs relied – known as the “efficiency gap,” which looks at the number of votes “wasted” in each election, either because they are cast for the losing candidate or because the victorious candidate did not need them to win – was not developed until very recently. “Is this the time for us to jump into this,” Alito asked, when there are still so many questions about the theory?

Although it was obvious that, for Alito, the answer was “no,” for Smith the answer was “yes.” In the 2004 redistricting case, the court provided a blueprint for future partisan-gerrymandering challengers: They would need to give the court manageable standards to evaluate their claims. And that is exactly what social scientists have done, Smith argued. In this case, the district court used three different social-science standards and concluded that the 2010 Wisconsin map was, for purposes of partisan gerrymandering, one of the worst maps ever.

Kagan seemed to be on board with Breyer’s standard, but looked for reassurance that the courts would not be inundated with challenges to other redistricting maps in the future. Smith suggested a variety of measures that seemed to placate Kagan, but not Roberts, who complained that the kind of statistics-based predictions that Smith’s measures would call for had “been a very hazardous exercise” for the court in the past. Alito also complained about the “dozens of uncertainties” in the process that Smith was proposing.

Perhaps notably, Kennedy did not ask Smith any questions at all during Smith’s 30 minutes at the lectern – which, although there’s no way to know, would seem to bode well for the challengers. Smith seemed to direct his closing remarks straight at Kennedy, as he told the justices that if they do not act now, it could be too late.

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Additional coverage of the argument in Whitford —via SCOTUSblog — comes from Richard Wolf at USA Today, Nina Totenberg at NPR, Lyle Denniston at his eponymous blog, Jess Bravin and Brent Kendall at The Wall Street Journal,  Tony Mauro at Law.com (subscription or registration required), Steven Mazie at the Economist, Greg Stohr at Bloomberg, Adam Liptak and Michael Shear in The New York Times, Robert Barnes in The Washington Post, Ariane de Vogue at CNN, Patrick Marley for the Milwaukee Journal Sentinal (via USA Today), and David Savage for the Los Angeles Times, who reports that “a majority on Tuesday seemed to lean in favor of a potential landmark ruling that for the first time would limit politicians from entrenching their party in power by clever drawing of legislative or congressional district lines.”

Commentary on the argument comes from Rick Hasen at the Election Law Blog, Lisa Soronen at the National Conference of State Legislatures blog, Jessica Mason Pieklo at Rewire, Michael Bobelian at Forbes, Derek Muller at Excess of Democracy, Ruthann Robson at the Constitutional LawProfBlog, Ryan Lockman at Lock Law Blog, Edward Foley at Election Law @ Moritz, and Michael Parsons at Modern Democracy, who observes that “oral argument revealed … litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.”

Finally, there is this interesting catch by Dana Milbank of the Washington Post about Justice Alito resorting to misrepesentations of fact in order to make his point. Fake news comes to the Supreme Court:

Fake news has come to the high court.

At Tuesday’s argument before the Supreme Court about gerrymandering — the science of using map-drawing and Big Data to keep ruling parties in power even when a majority votes for the opposition — Justice Samuel A. Alito Jr. was searching for a way to uphold the unsavory practice. But there was a problem: Gerrymandering is making a mockery of the right to vote in Wisconsin, the focus of the case before the court, where a redrawn map allowed Republicans to hold more than 60 percent of the state assembly while getting less than half the vote.

And so Alito resorted to subterfuge. He waited until the closing minutes and hit Paul M. Smith, the lawyer arguing against the Wisconsin plan, with the last question of the argument.

“You paint a very dire picture about gerrymandering and its effects,” Alito said, “but I was struck by something in the seminal article by your expert, Mr. McGhee, and he says there, ‘I show that the effects of party control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests.’ So he was wrong in that?”

The question baffled Smith, who said he would need to see the context.

“Well,” Alito retorted, “that’s what he said.”

No, it isn’t.

I called Eric McGhee, the expert, after the argument. The quote Alito pulled was not from the “seminal article” McGhee co-wrote proposing the legal standard for gerrymandering at the center of the case. It was from an earlier McGhee paper, using data from the 1970s through 1990s. In the paper at the center of the case, by contrast, “we used updated data from the 2000s,” McGhee told me, “and the story is very different. It’s gotten a lot worse in the last two cycles. . . . The data are clear.”

Why would Alito resort to this sleight of hand? Perhaps because it’s clear that if he stuck to the facts, he’d have to acknowledge that the growing abuse of gerrymandering threatens democracy.

Political gerrymandering has become dramatically more precise in disenfranchising voters with the revolution in data analytics — both in states such as Wisconsin and in Congress, where Democrats need to win the popular vote by more than seven points to break even in the House. (Democrats abuse gerrymandering too, though they hold power in fewer states.) There’s also no obvious legal reason that the court can’t intervene to curb the practice on grounds of free speech or equal protection.

“What’s really behind all of this,” Justice Ruth Bader Ginsburg said during arguments, is “the precious right to vote. If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?”

Smith predicted that if the court fails to intervene in Wisconsin, “you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen. . . . The country is going to lose faith in democracy.”

Three members of the court’s conservative bloc — Alito, Neil M. Gorsuch and John G. Roberts Jr., the chief justice — were searching for reasons not to intervene. (A fourth, the silent Clarence Thomas, previously voted against court involvement.) That likely leaves the decision to Anthony M. Kennedy, who is more prone to bouts of fairness than his conservative colleagues.

But even opponents didn’t defend gerrymandering (Alito called it “distasteful”) as much as they probed for excuses to leave it alone. Roberts described as “sociological gobbledygook” the data that show how Democratic votes were thrown away by being packed into a few districts (which aggravates a natural trend toward urban supermajorities for Democrats).

And, in an unusual soliloquy, the chief justice argued that the court shouldn’t get involved in the Wisconsin case because then it would have to intervene in others. “It’s going to be a problem here across the board,” he lamented.

The poor dears. Maybe, given that democracy is at stake, they could shorten their summer holiday, which just ended Monday?

Roberts continued: “The intelligent man on the street” will deduce that, if the Supreme Court rules with Democrats in a gerrymandering case, “it must be because the Supreme Court preferred the Democrats over the Republicans. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

Now he’s worried about the public standing of the court? After Bush v. Gore, campaign finance rulings that give the wealthy dominance over elections, and the brazen politics of the Merrick Garland fiasco?

In the gerrymandering case, the justices have a chance to restore “integrity” by defending the principle of one person, one vote. Alternatively, the five Republican appointees can defend their patrons by allowing this perversion of democracy to continue.