Gerrymandering Divides High Court, Leaving Kennedy in Middle

(Bloomberg) -- Opponents of partisan gerrymandering got a mixed reception as they urged the U.S. Supreme Court to rule for the first time that voting maps can be so one-sided they violate the Constitution.

Justice Anthony Kennedy, the likely swing vote, suggested during an hourlong argument Tuesday that he was open to limiting gerrymandering on a Wisconsin map that has given Republicans a nearly unbreakable hold on the state Legislature.

But Kennedy left the ultimate outcome in doubt, giving few hints as to whether he was satisfied that the Democrats challenging the Wisconsin voting lines had offered a manageable standard to separate unconstitutional maps from legitimate ones.

Other justices were less circumspect. Justice Ruth Bader Ginsburg said the "precious right to vote" was being undermined. "If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?" she asked.

On the other side, Chief Justice John Roberts said the public perception of the Supreme Court's integrity would suffer if the justices started deciding whether maps were too favorable to one party or another. "We will have to decide in every case whether the Democrats win or the Republicans win," Roberts said.

New Wave

The case could open the way for a new wave of election litigation. Although the Supreme Court has ruled against gerrymandered voting districts that disfavor members of a particular racial or ethnic group, justices have never struck down a legislative map as being too partisan or said what standard challengers have to meet to win a lawsuit.

Critics say gerrymandered districts undermine democracy, leaving voters with little influence over who represents them. Republicans are the most frequent beneficiaries, largely because their success around the country in the 2010 elections let them draw many of the current maps.

Wisconsin Republicans' statistician concluded that under their election map, Democrats would need 54 percent of the statewide vote to win a majority of the Assembly. A lower court said the map was unconstitutional.

In a 2004 case, Kennedy wrote a pivotal opinion that left open the possibility of limits but said opponents had yet to produce a manageable test.

Wisconsin Democrats say they now have the right test -- and the right map -- to meet Kennedy's concerns. The test relies in part on advanced statistical techniques, including a measure known as the "efficiency gap," which focuses on how frequently votes are effectively wasted, either because they go to a candidate who loses or because they provide the winner with more support than was necessary to prevail.

Kennedy Queries

Kennedy, however, didn't directly ask about that test Tuesday. He posed several questions about the legal "standing" of the Democratic voters to challenge the entire statewide map.

He also asked a lawyer representing the Wisconsin Legislature whether it would be constitutional to have a state law that explicitly favors one party. After the lawyer, Erin Murphy, said that would be unconstitutional, Kennedy pressed her to say what part of the Constitution would be violated. 

Kennedy's 2004 opinion suggested that extreme gerrymanders might infringe the First Amendment. "If a court were to find that a state did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the state shows some compelling interest," he wrote.

Kennedy said nothing during the half-hour presentation by Paul Smith, the lawyer representing the Democratic voters.

Social Science

The court's four Democratic appointees -- Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- all suggested they would vote to strike down the Wisconsin map. Sotomayor characterized the evidence of partisanship as overwhelming, saying "every single social science metric points in the same direction." Kagan said map-drawing techniques had grown "extremely sophisticated."

Justice Samuel Alito pushed back, saying it was hazardous to try to predict future voting patterns. Politicians "rely a lot on polls, don't they?" he asked. "How scientific have they proven to be?"

The newest justice, Neil Gorsuch, pressed Smith for more specifics on his proposed standard. Gorsuch likened the lower court's reasoning to his steak rub, containing "a pinch of this, a pinch of that." That approach "doesn't seem very fair to the states," he said.

Wisconsin is among the majority of states where the Legislature has the primary role in redistricting. Republicans created the map after winning full control of the state government in 2011, the first time either party had done that in Wisconsin in more than 40 years.

‘Map Room'

Republican leaders took the unusual step of hiring a law firm that set up a restricted-access "map room," consulted with a statistician to assess likely electoral outcomes and drew the map in a secretive, four-month process. The Legislature then took just nine days to approve the law that lays out the Senate and Assembly maps.

Smith told the justices that other states were poised to use the Wisconsin approach as a model for the next round of redistricting after the 2020 census.

"If you let this go, if you say we're not going to have a judicial remedy for this problem, in 2020 you're going to have a festival of copycat gerrymandering the likes of which this country has never seen," Smith said.

Wisconsin Solicitor General Misha Tseytlin, a former law clerk to Kennedy, told the justices that the proposed standards "would merely shift districting from elected public officials to federal courts, who would decide the fate of maps based upon battles of the experts."

The high-court case could affect pending legal disputes over Republican-drawn lines in North Carolina and a Democratic-drawn map in Maryland.

The case is Gill v. Whitford, 16-1161.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editors responsible for this story: Kevin Whitelaw at kwhitelaw@bloomberg.net, Laurie Asséo, C. Thompson