Analysis: Supreme Court Arguments Bode Badly For Partisan Gerrymandering

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On Tuesday, the Supreme Court of the United States listened to oral arguments in Gill v. Whitford, the gerrymandering case. The highlight of was, without doubt, Ruth Bader-Ginsburg’s exchange with Trump’s only “win” since he took office, Justice Gorsuch. Ruth Bader-Ginsburg took him down a peg in his effort to emulate Trumpian level arrogance. From the transcript

JUSTICE GORSUCH: Maybe we can just for a second talk about the arcane matter of the Constitution. And where exactly do we get the authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2, says Congress has the power, when state legislators don’t provide the right to vote equally, to dilute congressional representation. Aren’t those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?

JUSTICE GINSBURG: Where did one-person/one-vote come from?

The importance of this case can’t be emphasized enough since it could stop partisan gerrymandering, limit restrictions only to the most severe cases, or maintain the status quo.

This case stands out for another reason as well. Typically, oral arguments don’t really make much difference to the final disposition of the case. But this is one of those rare moments when oral arguments may have determined the case’s outcome. This was noted by Edward Foley, an expert on election law at Ohio State University Moritz School of Law observed.

The fact is that both parties use gerrymandering to their advantage, so in reality, this isn’t and shouldn’t be a partisan issue. But because the resulting representation is increasingly distorted as a result of increased gerrymandering, the very existence of democracy is at stake.

This case wound its way through the judicial process for that past two years. This was after Democrats won 51% of the vote Republicans won 48 % in Wisconsin’s 2012 election. Under the voodoo math of gerrymandering, Republicans “won” 60% of the state legislature. It got worse in 2014. Republicans won 63 of 99 seats with just 52% of the vote.

Several court observers concurred that the Justices agreed gerrymandering is unconstitutional reasonably early during the argument. The problem is if the court should police the practice and if so is there a workable standard the court can apply?

Amy Howe of SCOTUS Blog (my italics)

“ A federal court struck down the plan last year, agreeing with the plaintiffs that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. After roughly an hour of oral argument this morning, the justices seemed to agree that partisan gerrymandering is, as Justice Samuel Alito acknowledged, “distasteful.” But there was no apparent agreement about whether courts could or should get involved in policing the practice.

Adam Liptak and Michael Scherer of the New York Times (my italics)

There was something like consensus among the justices that voting maps drawn by politicians to give advantage to their parties are an unattractive feature of American democracy. But the justices appeared split about whether the court could find a standard for determining when the practice was unconstitutional.

Michael Joseph Stern of Slate (my italics)

And, most importantly, has Justice Anthony Kennedy finally settled on a test to determine when political gerrymanders cross a constitutional line?
What was apparent, however, is that a majority of the Supreme Court is disgusted by hyperpartisan redistricting and eager to do something about it.

In short, the court agrees that partisan gerrymandering is unconstitutional The problem is in finding a solution that the Justices can agree on – and this was the point where the consensus among court observers also ended.

Stern concluded the Court would allow gerrymandering to stand, while Howe, Liptak, and Scherer opined that gerrymandering could very well be in its dying days.

Gleening the transcript, it’s fairly clear that this will be a 5-4 ruling with Justice Kennedy casting the deciding vote.

The big question is whether Justice Kennedy believes there is “manageable standard” for the court to intervene. According to Perry Grossman,who co-wrote an amicus brief in favor of ending partisan gerrymandering and Dahlia Lithwick of Slate, Kennedy already told us what he’s looking for in his dissenting opinion in another case, Vieth v. Jubelirer

The Kennedy criteria are as follows:

1. A recognition that partisan gerrymandering is unconstitutional because it violates the first amendment vs. the fourteenth amendment. Simply put; Kennedy is arguing that gerrymandering amounts to the government rewards or punishes people for having a particular political viewpoint which makes it a first amendment issue. The fourteenth amendment is about discrimination against members of a protected class (race, religion, ethnicity, gender)

2. A workable standard would not ask courts to guarantee a political party would win the number of seats proportionate to the votes it received.

Coupled with Kennedy’s questioning about gerrymandering and the first amendment issue, Lithwhick and Grossman’s analysis, this bodes very badly for partisan gerrymandering.