The partisan gerrymandering beauty pageant is returning to the Supreme Court next fall for a limited engagement for an audience of one: Justice Anthony Kennedy. Whether or not Kennedy sees something he likes will go a long way toward determining whether courts will play a role in reining in some of the most partisan activity in American politics.
On Monday the Supreme Court agreed to hear Gill v. Whitford, a case considering the constitutionality of the Wisconsin Republican legislature’s state assembly districts, which greatly favor Republicans over Democrats despite near parity in support in the state. As the challengers to Wisconsin’s district plan explained, “Wisconsin’s Assembly … bears no resemblance to its evenly split electorate. In 2012, Republicans won a supermajority of sixty seats (out of ninety-nine) while losing the statewide vote. In 2014 and 2016, Republicans extended their advantage to sixty-three and sixty-four seats, respectively, even though the statewide vote remained nearly tied.”
For decades, voting-rights advocates who believe there is something unfair in letting partisan actors have free rein in drawing districts have looked to the courts to police to most egregious efforts to draw district lines to favor one party over another. Among other things, opponents of partisan gerrymandering have argued that allowing legislators to pick their voters rather than the other way around violates the Constitution’s equal-protection clause. The problem has been identifying when acceptable consideration of political party information to group similar voters together crosses the line into unconstitutionality.
In a 1986 case, Davis v. Bandemer, the Court announced that it could hear such cases (in technical legal terms, that the cases are “justiciable”), but it set forth a standard that was so hard to meet that there was never a successful claim. The Court reconsidered the issue in the 2004 case of Vieth v. Jubelirer. Four conservative justices, led by Justice Antonin Scalia, held that such claims were “nonjusticiable,” meaning that the Court could never hear such cases because there was no standard to separate permissible from impermissible consideration of party. The four liberal justices on the Court issued four separate opinions each setting forth a different standard which could be used to police the lines. Kennedy alone stood as the man in the middle, agreeing with the liberals that courts could hear these cases, but agreeing with the conservatives that each of the standards the liberals proposed, as well as a slightly different standard proposed by the plaintiffs in Vieth, were lacking. Kennedy suggested further consideration of the issue, looking perhaps at history, at analysis aided by technology, and at the First Amendment, which prevents certain government action that punishes people based on their partisan affiliation.
One way to understand the four different dissenting opinions in Vieth is that they were like contestants in a beauty pageant parading before Kennedy to see if there was anything he liked. And it has become clear that what’s happened since Vieth in the lower courts has been more of the same: attempts in partisan gerrymandering cases to find a new “manageable” standard that would please Kennedy.
The lower court in the Gill case, which found last year that Wisconsin’s legislative districts were unconstitutional, relied partially upon the “efficiency gap,” a measure of partisan gerrymandering developed by Eric McGhee and Nicholas Stephanopoulos which focuses on how much a partisan redistricting plan “packs” and “cracks” the other party’s voters for partisan advantage.
It is not clear whether Kennedy will find the efficiency gap to his liking, given that it has some similarities to earlier standards on partisan asymmetry that he has rejected, and some political scientists have sharply criticized the notion that the efficiency gap is a good standard of measurement. But no matter: Expect the Court to be flooded with amicus briefs from political scientists and others offering standards of their own. There are also gerrymandering cases from North Carolina and Maryland where plaintiffs have offered their own standards. The new beauty pageant for Kennedy will not lack for contestants.
The matter has some urgency. To begin with, it is not clear how much longer Kennedy will remain on the Court (though the Court’s grant in Gill signals he is likely to stay on the Court through next term and be the deciding vote). If the Court does not resolve the issue in this set of partisan gerrymandering cases, it may be too late for another case to establish the standard, especially if President Trump gets to pick another conservative like Justice Neil Gorsuch to replace Kennedy.
One indication of how divided the Court may be on this issue came about an hour after the Court agreed to hear Gill. On a 5-4 vote, with the liberal justices dissenting, the Court issued a stay of the lower court’s order requiring the Wisconsin legislature to draw new districts by November to solve the partisan gerrymander by 2018. Now maybe this just means Kennedy is being cautious, or maybe it means Kennedy is skeptical. Either way, it remains likely that it is all about Kennedy.
Second, partisan gerrymanders have gotten much more sophisticated, and with the new round of redistricting coming up after the 2020 census, things could get much worse. The conventional wisdom in the 1980s was, as Justice Sandra Day O’Connor put it in Davis v. Bandemer, that redistricting was a “self-limiting enterprise.” Spread the votes too thin, and you lose your partisan advantage. But sophisticated data today means that a partisan gerrymander could well last a decade—and of course if it doesn’t, a partisan legislature can simply redistrict again in the decade to maintain its partisan advantage.
It’s not clear if Kennedy will see a standard that he likes. But if he doesn’t, expect political manipulation of lines to get even worse.