Back in December, I reported how a new Wisconsin partisan gerrymandering lawsuit survived a motion to dismiss, calling it a big deal. As I explained:
The state of play in partisan gerrymandering claims is a crazy one: thanks to the position of Justice Kennedy in the Supreme Court (in the Vieth case and others), partisan gerrymandering claims are “justiciable” (meaning the courthouse door is open to raising the claims), but every usual standard that plaintiffs have raised to try to prove a partisan gerrymander has been rejected by Justice Kennedy. Kennedy’s message in essence is: keep trying to come up with a judicially manageable standard that separates permissible from impermissible consideration of party in redistricting. So if you are a plaintiff bringing such suits, you have to raise something different from what’s already been raised as well as something which could well attract the votes of five Justices, including Justice Kennedy.
Plaintiffs in the Wisconsin case have raised a kind of partisan symmetry argument, one which J. Kennedy did not completely close the door to in earlier cases. In particular, plaintiffs in this case are relying on the “efficiency gap” measurement set forth in Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).
Well today, a three-judge district court, made up of Democratic and Republican appointed judges, in a 36-page unanimous opinion, rejected Wisconsin’s attempt to get the case decided in its favor on summary judgment and instead set the case for a trial in late May.
This would be a big deal even if Justice Scalia were still alive, because the development of the partisan symmetry/efficiency gap in this way could be just what Justice Kennedy wants to see. (Who knows? It may depend upon whether he had wheaties or a croissant for breakfast).
But now there’s this: if Merrick Garland gets confirmed, or a President Clinton gets a nominee through, it is possible there would be five Justices to embrace a partisan gerrymandering standard even without Justice Kennedy’s vote.
So add partisan gerrymandering to the list of things up for grabs potentially in Election 2016.