I have spoken to many reporters and others asking me what I think is going to happen in Gill v. Whitford, the partisan gerrymandering case out of Wisconsin being argued at the Supreme Court on October 3. In particular, they want to know what Justice Kennedy is going to do. Let me start with my conclusion: not only don’t I know, but I don’t think anyone outside the Court can know just yet.
First, by way of background, back in June I situated this case in light of what’s come before it in this piece in The Atlantic:
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 Viethin 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 Carolinaand Maryland where plaintiffs have offered their own standards. The new beauty pageant for Kennedy will not lack for contestants.
Well the briefs have come in and they do offer a variety of standards. Especially important is the Grofman/Gaddie amicus brief supporting neither party but which urges the court to rein in egregious partisan gerrymanders. Gaddie was involved early on in helping Wisconsin draw its lines, and Grofman’s writings have been relied upon before by the Court in this area.
So here are the reasons to think Justice Kennedy might act to rein in gerrymandering:
- The briefs from political scientists support a variety of standards (I don’t believe there are any political scientist briefs saying that partisan gerrymandering is not a problem for courts to remedy) but they converge on the idea that extreme partisan gerrymandering creates representational problems. Nick Stephanopoulos has been pointing out this convergence, and it could weigh on Kennedy as a reason to start acting. (Indeed, in my piece on Vieth back in 2004, I said the time to act is when there is emerging consensus on the problem of gerrymandering.)
- Pam Karlan’s brief is quite correct that if the Court does not rein in partisan gerrymandering, these cases will still be brought in other guises, including as racial gerrymandering cases (as I’ve argued). Better for the Court to address the problem directly if it is a problem.
- The Grofman/Gaddie briefs and other briefs make the point that improvements in data have made it much easier to draw more effective gerrymanders that last an entire decade. No longer is gerrymandering, as Justice O’Connor put in in Bandemer, a “self-limiting” enterprise. To the extent Justice Kennedy sees representational harms to those of the minor party, they are more durable and lasting.
- Justice Kennedy knows that his replacement, if replaced by President Trump, is going to be much less likely to rein in gerrymanders than he is. This is maybe the last chance to do so.
- Justice Kennedy may find some appeal to the intent-only standard put forward by Justin, as well as Michael Kang’s persuasive argument that Justice Scalia steered everyone wrong in his Vieth plurality opinion stating that some considerations of partisanship in drawing district lines are legitimate.
On the other hand, here are some signs Justice Kennedy may not be willing to rein in partisan gerrymanders:
- For all the talk of new standards, there were measures of partisan bias before, rejected in Vieth, and it is not clear that any of the new standards, even the efficiency gap, are measuring something really new.
- This case came up from an appeal, not a cert petition, and so an affirmance of the lower court opinion would have been a ruling on the merits, and a confusing one at that. It would have said that Wisconsin did engage in a partisan gerrymander, but it would not have said necessarily why (summary affirmances mean the lower court result is right, but not necessarily its reasoning). The Court had to take this case, or to summarily reverse; otherwise there would have been great confusion.
- As I noted at the Atlantic, “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.”
- Justice Kennedy knows that whatever standard he might put in place may face resistance at the Supreme Court when he leaves the Court. He may not be confident he can put a standard in place that would be durable and limit what the Court does. (Ned Foley addresses that issue here.)
Bottom line: I can see things going either way. Perhaps Justice Kennedy will tip his hand at oral argument. My guess is that the reporting will tell us that he asked tough questions of both sides and seemed to be struggling, leaving us all to guess what will happen until the Spring.