Gerrymandering

A new Supreme Court term begins Monday.

On Tuesday, the court will hear arguments in Gill v. Whitford, otherwise known as the “Wisconsin gerrymandering” case. This is one of the most anticipated showdowns that the Justices will be expected to referee in coming days and weeks. 

Constitutional lawyers in the U.S. distinguish sharply between racial and partisan gerrymandering. When the claim before the courts is that lines were drawn to bleach certain districts, keeping racial minorities out, then the courts want to see proof that this was indeed the predominant motive. Not just a motive, but the predominant motive. Plaintiffs do overcome that burden, as we saw for example in a Supreme Court decision just last term. 

When the lines are drawn for the sake of advantaging one political party over another, though, the Supreme Court hasn't quite known how or whether to respond. In one case on point 13 years ago, Vieth v. Jubelirer (2004) the court split 4 to 1 to 4, with Justice Kennedy acting as the swing vote. 

Four justices, through Justice Scalia's opinion, said then that the issue is "non-justiciable." Another four Justices thought the issue quite justiciable. Indeed, as Souter put it, they said that "the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine." They thought it was "high time" that the court stepped in to make that dreadful process less efficient. 

Justice Kennedy voted with Scalia on the specific case then at issue, THAT case was nonjusticiable, essentially because no one had produced a standard for making the decision that Kennedy considered workable, productive of non-arbitrary predictable results. But Kennedy's concurrence in Vieth held out hope for future plaintiffs. He said: keep trying -- you may come up with a good standard yet, and when you do, I'll take your side to make it law!

The composition of the court has changed somewhat since 2004, but Kennedy might again end up the swing vote, now with Roberts, Thomas, Alito, and Gorsuch on one side of him; Breyer, Ginsburg, Sotomayor, and Kagan on the other. If so, that will be fitting, because what the plaintiffs are doing in Gill is taking him up on that old suggestion. They propose a three-part test, that a district plan should be struck down as unconstitutional if it has (1) a partisan motive, (2) that results in a large and durable partisan effect, (3) that is unjustified by legitimate districting factors. The key question Tuesday is going to be whether plaintiffs can be properly specific about the second prong of this fork, about the measurement of partisan effect.