When the Supreme Court decided to hear Vieth v. Jubelirer, it was unclear why they took the case. After all, in the 1986 Davis v. Bandemer case, the Court had held claims of partisan gerrymandering were justiciable (i.e., could be heard by courts), but the Court did not come up with a standard that had any teeth. Most lower courts applied the test of the Bandember plurality, which required showing that a political party had been essentially shut out of the political process by redistricting. Under that standard, lower courts (with a single outlier discussed in the Vieth plurality opinion) never found an unconstitutional partisan gerrymander.
So it was unclear if the Court took the case to give the Bandemer test some teeth or to reverse its justiciability holding.
It turns out there are now four votes to give Bandemer some teeth (Stevens, Souter, Ginsburg and Breyer)—though there are three different opinions on how to do so—and four votes for nonjusticiabilty.
So the crucial vote is Justice Kennedy’s vote. Justice Kennedy’s opinion is not very clear, but here is what is clear from what he says:
(1) He agrees with the plurality that the Bandemer test is unworkable, as is the test proposed by the Pennsylvania plaintiffs as well as the three alternative tests proposed by the dissenting Justices. (See Kennedy slip op at 3.)
(2) He disagrees with the plurality that these cases should now be declared non-justiciable, while acknowledging that “those arguments may prevail in the long run.” (Kennedy slip op at 4.)
(3) He suggests that there is something “not permissible” (p. 11) about partisan gerrymandering, believes the “standard” to be applied is “the Fourteenth Amendment standard,” and he awaits the development of a “subsidiary standard [[that] could show how an otherwise permissible classification, as applied, burdened representational rights.” (p. 9.)
(4) Kennedy offers two hints toward showing such a standard. First, it might be helpful to see “discussions on principles of fair districting discussed in the annals of parliamentary or legislative bodies.” (p. 3.) Second, an argument for finding a rights violation might better be found in the First Amendment rather than the 14th amendment: “If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the state shows some compelling interest.” But, right after this statement, he adds: “Of couse, all this depends first on courts’ having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of party’s voters.” Given that last sentence, it is hard to see what is gained by the shift to the First Amendment.
(5) So is the plurality right that lower courts “must treat [Justice Kennedy’s vote] as a reluctant fifth vote against justiciability at district and statewide levels–a vote that may change in some future case but that holds, for the time being that this matter is nonjusticiable.”? I think this overstates it a bit. I think plaintiffs raising partisan gerrymandering claims now will need to come up with some theory of partisan fairness based in the First Amendment and in historical practice, and argue that the standard is both different from the standards rejected in Vieth and also sufficiently manageable to separate fair from unfair plans. No doubt, most, if not all, of those attempts will fail, but the Supreme Court remains open for a new argument, particularly, I would think, in the case of more egregious partisan behavior than we have thus far seen.
Note: In my original post, I had referred to the plurality opinion as the “majority” opinion a few times. I have now corrected that. Thanks to Trevor Potter for noticing the problem.