Benisek oral argument

After a redistricting treatise this morning, just a snippet of follow-up for now.

This morning, I suggested that the question on the substance of a First Amendment claim for the partisan gerrymandering cases — the question in line with First Amendment doctrine elsewhere — has to do with the invidious intent to injure or subjugate.  (This isn’t the only right question: there are other, complementary, claims dealing with effect.  But it’s a right question, and a sufficient one to address the claims before the Court.)  And I pointed out that in Gill, Justice Kennedy repeatedly hammered a question on exactly these lines.

The transcript is now out for Benisek.  And Justice Kennedy asked precisely the same question, again.  Just sayin’.


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