The justices of the U.S. Supreme Court appeared split Tuesday over the marquee case of the term, concerning the constitutionality of political gerrymandering, a redistricting practice in which legislators draw district maps that favor one party over the other.
Gerrymandering has been a feature of the republic since its founding. The high court has generally been averse to entertaining redistricting challenges concerning partisan advantage, as they implicate the sort of political issues the justices prefer to avoid. Advances in technology and social science, however, may prompt the Court to tack a new course. Modern line drawing techniques, abetted by unprecedented access to data and mapping softwares, enable self-interested politicians to draw district maps conforming to all traditional redistricting criteria while permanently entrenching the incumbent party. Critics charge such invidious line drawing effectively disenfranchises supporters of the minority party, since their votes are unlikely to affect the outcome of an election.
This case emerged from Wisconsin, where Republicans enjoy a significant majority in the state legislature despite commanding just over half the statewide vote in recent elections. In the 2012 election the GOP won a 60-seat majority in the 99-seat chamber despite winning just 48 percent of the vote. A coalition of Democratic voters and political groups brought a lawsuit challenging the entire Wisconsin state legislature map, alleging it violates the Constitution’s First Amendment and equal protection clause by diluting the power of their votes. A three-judge district court ruled in their favor.
The map-challengers must surpass two obstacles before the justices can rule on the merits of their case. In the first place, they must demonstrate they have a right to bring a case at all. In order to bring a lawsuit, a plaintiff must demonstrate they have “standing,” that is, a tangible and particularized injury a court can relieve. Wisconsin claims the challengers in this case may be able to contest the specific map of the district in which they live, but cannot challenge the entirety of the statewide map, because they cannot allege an injury in a district where they do not reside.
Justice Samuel Alito seized on this point early in the argument, asking Wisconsin Solicitor General Misha Tseytlin if a Democratic voter in Milwaukee could sue a town in the northern part of the state that bans political signs supporting Democratic candidates. Justice Anthony Kennedy countered that the answer depends on the matter at issue on the sign. He said a Milwaukee voter could care intensely about the issue the sign addresses, raising the prospect that they do have standing.
Kennedy further suggested that voters have a First Amendment interest in ensuring they can assemble and associate with like-minded people all around their state. He acknowledged, however, that there is little by way of precedent that supports the challenger’s standing argument.
“I think it is true that there is no case that directly helps respondents very strongly on this standing issue,” he said. “You have a strong argument there.”
A finding that the challengers do have standing would make partisan claims unique in the gerrymandering context. The Court has never explicitly stated that a racial challenge could be brought against an entire state map, that is, a claim alleging an entire map discriminates against minorities by packing them into districts or spreading them among districts so as to dilute their influence in the legislature. Chief Justice John Roberts told Paul Smith, lawyer for the map-challengers, that the argument that a statewide map could be challenged on a partisan basis but not on a racial basis was “arresting.”
The chief also expressed concerned that creating a basis for partisan gerrymandering claims will result in challenges to district maps all over the country. Such claims fall within the Court’s mandatory jurisdiction, meaning that the justices would have to eventually hear a bevy of political gerrymandering cases. Such an outcome, he feared, would damage the institutional integrity of the Supreme Court in the eyes of the public, since many could be left with the impression that the justices decided these important cases on the basis of their political convictions, rather than the law.
“[T]hat is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country,” he added.
Elsewhere, Kennedy asked questions relating to the exact nature of the injury the map-challengers are alleging, seeking to identify whether the injury — if it exists at all — is to their First Amendment claims or equal protection rights.
If the map-challengers establish standing, they must then demonstrate that the Court could establish reliable measures for identifying partisan gerrymanders. In previous cases, the Court conceded that some degree of partisanship in the redistricting process is both inevitable and lawful. The trouble lies in identifying when a partisan gerrymander becomes so partisan it violates the Constitution.
Wisconsin says clear, manageable standards cannot be established because best social science practices are constantly changing, an argument with which the chief and Alito expressed agreement. Justices Sonia Sotomayor and Elena Kagan quickly countered that partisan map-drawers rely on advanced social sciences and technology as a matter of course, and that Wisconsin’s drawers had used such methods to create the most partisan map possible. Since these techniques have been used to such good effect by map-makers, they argued, so too should the courts use them to evaluate the propriety of district lines.
But the chief reiterated his fear that the public will be deeply suspicious of any partisan gerrymandering decision, whatever its social science merits.
“The intelligent man on the street is going to say, ‘That’s a bunch of baloney. It must be because the Supreme Court favored Democrats or Republicans,'” he said.
Justice Neil Gorsuch expressed skepticism that such standards could be formulated, and seemed to suggest that the standards Smith was proposing effectively ask courts to make it up as they go along, not unlike his own personal steak rub.
“It reminds me a little bit of my steak rub,” he said. “I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.”
“So what’s this Court supposed to do, a pinch of this, a pinch of that?” he asked.
For Wisconsin’s part, Tseytlin warned that a ruling favorable to the challengers would “merely shift districting from elected public officials to federal courts, who would decide the fate of maps based upon battles of the experts.”
But Smith emphasized that failure to intervene would result in “a festival of copycat gerrymandering,” prompting the creation of maps “so extreme it effectively nullifies democracy.” Justice Ruth Bader Ginsburg appeared to agree, and expressed fear that partisan gerrymanders effectively deter people from voting, to the extent that they might feel their vote is irrelevant.
“What becomes of the precious right to vote?” she asked.
Disclosure: The writer’s fiancee is employed by a firm involved in this litigation.
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