WASHINGTON — Two high-stakes partisan gerrymandering cases before the U.S. Supreme Court could radically reshape the political landscape for decades to come, legal scholars say.
The two cases — one originating with a challenge by Democrats to statewide redistricting in Wisconsin, the other, a Republican challenge to a redrawn congressional district in Maryland — will likely turn on the swing vote from Justice Anthony M. Kennedy, as do so many cases.
The Supreme Court has never ruled that extreme political gerrymandering violates the Constitution. And Chief Justice John G. Roberts Jr., along with Justices Neil M. Gorsuch and Samuel A. Alito Jr., made plain during oral arguments that they are reluctant to do so.
But the high court may finally hand down a decisive ruling on the issue, some legal experts suggest.
They point to Kennedy’s writing in a concurring opinion in a 2004 case that if justices come up with a standard for identifying unconstitutional, extreme political gerrymandering, the court could strike it down.
Experts note that sophisticated, computerized map-drawing techniques have enabled legislatures to predict the outcome of elections based on political boundaries more than ever before, and gerrymandering has never approached the level seen today.
“It’s the first time that the court is taking part in gerrymandering cases where it looks like we’re going to get a decision of some consequence on the issue, and it’s amazing for me to see the awareness of partisan gerrymandering at a level that I never thought I would see,” said Junaid Odubeko, a Nashville attorney who serves as legal counsel to the Tennessee Senate Democratic Caucus.
“When you pack Republican or Democratic voters into a district, or if you spread out votes in a certain district to the point that voters in one party think they can’t win, it gets to the point where voters think they really don’t have a say in who gets elected,” Odubeko said. “And political gerrymandering has a corrosive effect on our politics. So you disenchant voters, and we’ll see if the court finds that you disenfranchise them somehow.”
The extent of blatantly political gerrymandering by state legislatures has brought calls for the Supreme Court to intervene from Democratic and Republican voters alike, polls show. (In 42 states, state legislatures draw the boundaries for congressional electoral districts, and in 37, for state districts, while independent commissions oversee other redistricting plans).
Experts say extreme political gerrymandering turns primary, not general elections, into the real battlefields, and leads to more polarizing campaigns and election of candidates who pander to the extremes of their party to avoid losing their seats.
Gerrymandering brings ‘more extreme’ politics
Jonathan Entin, a professor emeritus at Case Western Reserve University School of Law in Cleveland, predicted that if the Supreme Court punts on gerrymandering: “What we’re going to see is a lot more aggressive partisan gamesmanship after the 2020 census. We will see more and more that the only elections that matter for most congressional seats and most state legislative seats will be the primaries.
“And that,” Entin continued, “means that with politics so polarized, it’s going to encourage people who are running for office to be more extreme. When they’re elected, that will make the possibility of bipartisan deal-making or compromise much less likely, and that will certainly not lead to better government or better public policies.”
Both cases before the Supreme Court center on political boundaries redrawn after the 2010 Census. (The Constitution requires political boundaries be adjusted after the decennial Census in all 43 states with more than one at-large congressional district.)
In the Wisconsin case, Gill v. Whitford, the state asked the U.S. Supreme Court to overturn a decision by a divided three-judge panel of the Madison-based U.S. District for the Western District of Wisconsin — the first federal court in three decades to invalidate a redistricting plan based on partisan gerrymandering grounds. The court struck down as unconstitutional a 2011 redistricting plan for the lower house of the state assembly, ruling it effectively guaranteed Republican victories in many assembly districts.
Democratic voter William Whitford, a University of Wisconsin Law School professor emeritus, argued in the federal court suit that the GOP-drawn election maps violated the “one-person, one-vote” principle of the 14th Amendment’s equal protection clause and the First Amendment rights of association and free speech.
In the Maryland case, Benisek v. Lamone, Republicans seek to reverse the ruling of a divided three-judge panel of the U.S. District Court in Maryland denying a GOP request that the court block a Democratic-drawn congressional district. The GOP challengers argue the maps retaliated against Republican voters for their political association, in violation of the First Amendment.
Thomas Julin, a Miami-based attorney specializing in First Amendment law, noted that state legislatures draw not only state, but also congressional electoral maps. And Julin says today’s extreme political gerrymandering — benefiting primarily Republicans — fulfills former GOP strategist Karl Rove’s strategy about a decade ago to take control of Congress by redrawing election districts.
“Rove said, ‘OK, what we need to do to cement our Republican control of Congress is to really work on these redistricting plans,’ and that has been very effective across the country,” Julin said. “The Democrats have been left to try to challenge these plans. They’re finally managing to get a little foothold.”
Justice Kennedy: In search of a ‘workable standard’
Kennedy’s vote is seen as potentially pivotal, particularly in Gill, largely because of his concurring opinion in the 2004 case Vieth v. Jubelirer, a plurality opinion in a challenge to Republican-drawn Pennsylvania congressional district boundaries.
In Vieth, the late Justice Antonin Scalia wrote that partisan gerrymanders are not the purview of courts. Scalia, the late Chief Justice William H. Rehnquist, Justice Clarence Thomas and then-Justice Sandra Day O’Connor agreed that an “excessive injection of politics” in redistricting is unlawful, but warned that federal courts should avoid this “political thicket” because of the lack of a way to determine what would constitute unlawful gerrymandering.
In his concurring opinion, Kennedy wrote that partisan gerrymandering is unconstitutional because it violates the First Amendment but that no “workable standard” existed to prove partisan gerrymandering. Kennedy specifically wrote that rapidly advancing computer technology enabling much more precision in predicting the outcome of elections based on redrawn districts could become a significant factor in determining whether political gerrymandering goes too far.
“That no such standard [demonstrating political gerrymandering violates the Constitution] has emerged in this case should not be taken to prove that none will emerge in the future,” Kennedy wrote in his concurring opinion in Vieth.
Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen G. Breyer and Sonia Sotomayor suggested during oral arguments the time has come for the court to reject blatantly political gerrymandering. That’s a view shared by legions of opponents of political gerrymandering – many of them Democrats who point out GOP-led redistricting after the 2010 Census has overwhelmingly benefited Republicans.
During oral arguments in the Gill case in October, Ginsburg (who has suggested the case could be the most important of the court’s term), summed up the sentiments of critics of extreme political gerrymandering: “What’s really behind all of this? The precious right to vote.”
And Kennedy once more suggested if a standard can be devised to show unconstitutional extreme partisan gerrymandering, the court could strike it down. He gave no hint how he might vote though.
For his part, Roberts said during oral arguments in Gill that if the court decided in favor of those challenging gerrymandering: “We will have to decide in every case, whether the Democrats win or the Republicans win.” Doing so, the chief justice added, would “cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
Wisconsin officials argued in a brief to the court that the heavy GOP representation in the legislature resulted not from gerrymandering, but from Democrats clustering in cities and inner suburbs, diluting their voting strength. And the state argues drawing political boundaries is the purview of legislatures and that the courts should not intervene.
During the oral arguments, Wisconsin Solicitor General Misha Tseytlin told the justices: “This court has never uncovered judicial and manageable standards for determining when politicians have acted too politically in drawing district lines.”
Speaking of Democrats who challenged the redrawn districts, Tseytlin said, “They would merely shift districting from elected public officials to federal courts, who would decide the fate of maps based upon battles of the experts.”
Tseytlin criticized the statistical evidence that the Wisconsin voters argued proved Republicans redrew electoral maps to ensure GOP candidates win, and Roberts labeled the complex models “statistical gobbledygook.”
Justin Levitt, a professor at Loyola Law School in Los Angeles and author of the All About Redistricting blog, suggested the Supreme Court faces a tough balancing act.
“I think there’s plenty, in both cases, to support a ruling that guides the lower courts,” Levitt told TMN. He noted courts have struck down all or part of congressional district gerrymandering in five states, and courts redrew political boundary lines themselves in a dozen other states.
“It’s abundantly clear,” Levitt said, “that the [Supreme Court] is, and has been, primarily concerned with making sure that they set a standard that doesn’t strike down every district in the country — and that doesn’t just amount to letting lower courts wing it.”
Levitt, who wrote an amicus brief supporting the Wisconsin voters, told TMN: “The intent is the thing that really makes the difference. Ending up coincidentally with a biased map isn’t something that the Constitution prohibits. But setting out to use state power intentionally to punish one party and reward another is something we don’t permit in any other arena of government and isn’t something that should be permitted in redistricting.”