Since then, a coalition of Republican voters has been challenging the 2011 redistricting as an unconstitutional gerrymander. They offer the Court a pure First Amendment test that might, to a arithmophobic judge’s eye, seem to offer advantages over the “efficiency gap” and related statistical tests. They explain in their brief:
Unlike the equal-protection approach to partisan gerrymandering, the First Amendment retaliation framework does not depend on a unifying definition of “fairness” or require courts to determine when a map has gone “too far.” It instead asks whether the State has imposed a real and practical burden (one that is more than de minimis) in retaliation for past political support for the opposition party. … As this Court’s ballot-access cases make clear, the inquiry is pragmatic and functional, turning not on statistical measures of imbalance, but on the practical effects of a gerrymander themselves.
The first issue in both these cases is whether the courts can even hear partisan gerrymandering cases at all. The hard-line conservative position is that, because there isn’t a clear and simple test, partisan legislative redistricting is and must be a function of bare-knuckle politics, without judicial review; thus it was at the framing, the argument runs, and thus ever mote it be. Justice Anthony Kennedy, the swing vote in cases like these, has refused to close that door, however. In a 2004 case called Vieth v. Jubilirer, he wrote that he hadn’t found a test that would work, but that one might come along.
These two cases put that possibility to the test. A conservative justice, or a swing justice, or a justice named, say, Kennedy, might prefer the Benisek test to that offered by the appellees in Gill. For one thing, the First Amendment is for Kennedy the Maslow’s Hammer of constitutional law: one size fits all. Kennedy may not enjoy regression analysis, but he can certainly count to “more than de minimis.” The Benisek appellants’ test, further, presents itself as a test of one district only, rather than as an attempt to overturn an entire district map.
Thus, adopting the Benisek test might, on the one hand, avoid a sweeping ruling that would upset an entire state’s map (one that has empowered a Republican supermajority in purple Wisconsin) while, on the other, not putting the courts out of the gerrymander business altogether (and rebuking a Democratic legislature in annoyingly blue Maryland). Perhaps most important, the “pragmatic and functional” test would remove the case from the disorienting Mathmagic Land of the EG, and place it in the realm of gut feelings, which is where Kennedy always feels most at home.
The Gill challengers recognize that the Benisek test, if adopted, would offer a dull knife instead of the scalpel they seek. They urge the Court to adopt their test and use it to find the Sixth District unconstitutional. Their test is superior, they argue: It “would not jeopardize the vast majority of congressional plans,” and would not “be skewed in either party’s favor.”