Supreme Court gerrymandering ruling hangs on Justice Kennedy

Gerrymandering legislative district lines has given Republicans control of the House of Representatives and most state legislatures despite greater nationwide vote totals for Democratic candidates in some of the same elections. In recent elections, Republicans made a concerted effort to consolidate control of Congress and state legislatures by gerrymandering legislative districts for both state and House seats.

In the 2012 elections for the Wisconsin State Assembly, Democrats won 53 percent of the votes to the Republicans 47 percent, but Democrats only took 39 seats while Republicans took 60 seats. In 2016, the vote tallies were reversed but the seats taken were not. Republicans took 53 percent of the vote to the Democrats 47 percent, but Republicans increased to 64 seats while the Democrats went down to 35 seats.

{mosads}In other words, 53 percent of the vote was worth 64 seats in Republican hands but only 39 seats in Democratic hands. What accounted for that was the way the district lines were drawn to make the most of each Republican vote and the least of Democratic ones. The elections weren’t determined by the voters, but by the power of Republicans to assign district lines. The challenge by Democrats to the Wisconsin gerrymandering is now in front of the U.S. Supreme Court in Gill v. Whitford, where it was just argued.

Favoring one party or the other is not particularly difficult. If Democrats are “stacked” into a few districts in which they have overwhelming majorities, the remaining votes can be spread or “cracked” much more thinly among the remaining districts and enable Republicans to win over a number of districts that can create large advantages independent of votes. Illustrating the power of gerrymandering, with brief exceptions, from 1874 to 2008, Republicans controlled the New York State Senate and still do in a coalition, while the New York State Assembly, elected by the same voters, has been under consistent Democratic control since 1974.

In Gill, the issue is whether Wisconsin’s districts conflict with the First Amendment because voters were assigned to districts by their political views, or the equal protection clause of the Fourteenth Amendment, because the power of one party’s voters are maximized while the others are minimized. Given the opinions in prior cases, everything seemed to hang on whether Justice Anthony Kennedy would find that the unfairness or inequality can be measured well enough. In those earlier cases, he had expressed both interest and doubt about the possibility of properly measuring the bias in district lines.

There’s pretty good evidence that the other justices are split 4-4. At the argument in the U.S. Supreme Court, the liberal justices made reasonably clear their support for a standard to eliminate biased gerrymandering. Justice Stephen Breyer suggested standards that courts could manage. Justice Ruth Bader Ginsburg suggested voters would think gerrymandered elections are rigged, therefore leaving little of the “precious right to vote.” Justice Sonia Sotomayor asked what gerrymandering does to improve democracy. Justice Elena Kagan stood up for the effectiveness of the science for measuring the bias in the districting.

Kennedy, however, said nothing about the reliability of the various measures of gerrymandering. He also asked no questions of the attorney for the plaintiffs who are seeking a limit on the ways lines are drawn. Kennedy did challenge his more conservative colleagues on “standing” as to whether the interests of the plaintiffs in the way other people’s districts were designed entitled them to sue. He seemed to say they had interests the law should respect.

Perhaps a more revealing tea leaf is his question whether it would be legal if “a state constitution or state statute says all districts shall be designed…to increase…have a maximum number of votes for party X or party Y.” By hypothesizing motive on the face of such official language, he made it difficult to argue that gerrymandering could be conceptually acceptable.

Even Justice Samuel Alito and the attorneys for the respondent state parties found themselves unable to resist the conclusion that gerrymandering is illegal in that form. His question left little ground to sustain the Wisconsin districts unless there is no good way to measure the extent of gerrymandering. So the decision probably does depend on Kennedy’s view of the strength of the statistical tests for biased line drawing, the issue on which Kennedy was silent.

The justices, when candidates for confirmation, are all primed to tell us they don’t really do anything but call balls and strikes or similar metaphors. Actually none of them do that and none of them can. All judges have their own judicial and social philosophies, whether they are willing to share or not. The Gill case, argued earlier this month, will make clear whose view of law incorporates a concept of democracy that can be distinguished from might makes right. We’ll know by June.

Stephen Gottlieb is the Jay and Ruth Caplan distinguished professor at Albany Law School and an expert in constitutional law. He has served on the board of the New York Civil Liberties Union and the New York advisory committee to the U.S. Civil Rights Commission. His latest book is “Unfit for Democracy: The Roberts Court and The Breakdown of American Politics.”