Democracy, SCOTUS Reputation at Stake in Gerrymandering Case

• High court considers if political considerations in redistricting can run afoul of Constitution

• Only Supreme Court can solve partisan gerrymandering, attorney argues

• Could cast Supreme Court in political light, justices worry

By Kimberly Strawbridge Robinson, Bloomberg BNA

American democracy is at stake, and only the U.S. Supreme Court can fix it. That’s what the attorney representing voters challenging Wisconsin’s voting districts told the justices Oct. 3 during oral argument in a case that could drastically change the way states draw voting districts for federal and state elections.

The plaintiffs say Wisconsin Republicans stacked the deck against Democrats so that the result of elections was essentially preordained in Republicans’ favor. They point to 2012, when Republicans got fewer than half of the votes but were able to secure a super majority of seats in both houses of the state legislature.

Politicians are never going to fix the problem because partisan gerrymandering keeps them in power, the plaintiffs’ attorney Paul Smith, of The Campaign Legal Center, Washington, said.

Some justices, though, worried that courts policing partisan gerrymandering calls the judiciary’s legitimacy into question.

In every case, the Supreme Court will have to decide whether Democrats or Republicans win, Chief Justice John G. Roberts Jr. said. That will cast the court in a partisan light and call into question all of the court’s other decisions, Roberts said.

All eyes, however, were on Justice Anthony M. Kennedy, who is likely to cast the deciding vote. Kennedy’s few comments during the argument seemed to favor the plaintiffs challenging Wisconsin’s maps.

But as the Chief said during the argument: Prediction “is a very hazardous enterprise.”

Not Your Grandfather’s Gerrymander

Most redistricting is done by state legislatures. As such, redistricting is an inherently partisan process, Erin Murphy, of Kirkland & Ellis LLP, Washington, said. Murphy argued on behalf of the Wisconsin State Senate and Wisconsin State Assembly, which participated in the case as amici in support of the state maps.

None of the justices, however, seemed to think that partisan gerrymandering was a beneficial activity. It’s “distasteful,” Justice Samuel A. Alito Jr. said.

The Constitution puts any fix, though, with the legislature—not the courts, Justice Neil M. Gorsuch said.

But partisan gerrymandering entrenches the party in power, so that the fix can’t be done legislatively, Smith said. It effectively nullifies democracy, he added.

Moreover, the country is on the “cusp of a very serious problem,” Smith said.

There’s been a “revolution in data analytics” such that legislatures are getting better at drawing gerrymandered maps, he said. These are not your “grandfather’s gerrymanders,” Smith said.

Given that the country is becoming increasingly divided, we’re likely to see a “festival of copycat gerrymanders” the next redistricting cycle if the Supreme Court doesn’t step in.

Steak Rub & Baloney

If the court does step in, every district in the country will be vulnerable to attack, and the Supreme Court is going to be the one that has to decide all these cases, Roberts said.

Redistricting cases don’t follow the Supreme Court’s typical process for hearing cases. Rather than leaving it up to the justices’ discretion to decide whether to hear a case, redistricting cases are automatically appealable to the high court.

The average person on the street is going to think that the Supreme Court is a political body, Roberts lamented.

That’s why there has to be a clear standard for when partisan considerations in redistricting run afoul of the Constitution—to avoid that reaction, Alito said. He didn’t seem to think that the plaintiffs have presented one.

Smith laid out a multi-part test that, among other things, looks at whether the final maps treat Republicans and Democrats symmetrically.

One measure of partisan symmetry that Smith pointed to is the “efficiency gap,” which attempts to measure wasted votes. If Democrats wasted their votes more than Republicans, it’s an indication that the voting maps unfairly disadvantaged Democrats, Smith said.

The problem is that the court below used the efficiency gap along with two other measures to gauge political symmetry, Gorsuch said.

He analogized the lower court’s reasoning to his steak rub: “a little of this, a dash of that.” That’s not a very clear standard for legislatures to follow, Gorsuch said.

And the average American will just think that’s baloney and that the court is making a political decision, Roberts said.

You may be able to save the Supreme Court’s integrity, but democracy will be dead, Smith responded.

The Supreme Court is the only institution in the U.S. that can do anything about the problem, he said.

All Eyes on Kennedy

In fact, the resolution most likely depends on just one justice—Justice Kennedy. He’s been the swing justice in previous partisan gerrymandering cases that have come before the high court, although this the first partisan gerrymandering case before the Roberts Court.

Kennedy spoke briefly at the beginning of the argument, suggesting that he doesn’t see a technical impediment to the suit. The plaintiffs here likely have standing—that is, the legal authority to challenge the state map—Kennedy’s comments implied.

Kennedy did grill the states’ attorneys, including Wisconsin Solicitor General Misha Tseytlin, about whether a state could pass a law requiring the legislature to consider politics in the redistricting process. Kennedy’s response seemed to indicate that Kennedy was uncomfortable with politics being entrenched in the redistricting process.

But Kennedy was silent for the remainder of the argument. Kennedy did not ask any questions of Smith, who argued for the plaintiffs challenging the maps.

The case is: Gill v. Whitford, U.S., No. 16-1161, argued 10/3/17

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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