By Lisa Soronen
All eyes and ears were focused on Justice Anthony Kennedy during the U.S. Supreme Court’s oral argument in Gill v. Whitford in which the court is asked to decide whether and when it is possible to bring a claim that partisan gerrymandering (redistricting to advantage one political party) is unconstitutional.
In the 2012 election, Republican candidates in Wisconsin received less than 49 percent of the statewide vote and yet won seats in more than 60 percent of the state’s 99 seats. In 2014, 52 percent of the vote yielded more than 63 percent of seats for Republicans.
Kennedy’s vote is considered crucial in this case as he is not only the court’s “swing” justice, but in Veith v. Jubelirer (2004) he wrote a concurring opinion indicating he believed partisan gerrymandering could be unconstitutional if the court could agree on a workable standard. Challengers to Wisconsin’s redistricting plan attempted to provide just such a standard.
Kennedy didn’t disappoint. In most arguments in controversial cases, Kennedy is very measured, asking one or two questions of each side later in the argument. In this case he asked the first question of first and second attorneys arguing the case in support of Wisconsin’s redistricting plan—and insisted the second attorney answer his question.
The plan challengers might take these questions as a good sign but they were mixed and subject to interpretation. His first question suggested he may think the named challenger in this case might not have standing (a legal right) to bring the case. His second question seemed to suggest that he thinks that some amount of partisan gerrymandering is simply too much to be constitutional. Specifically, he asked if a state law requiring partisan gerrymandering in favor of one party after traditional factors were considered was unconstitutional. But Kennedy didn’t follow up with any questions indicating whether he liked or disliked the three-part test proposed by the challengers to prove unconstitutional partisan gerrymandering.
The majority of the argument went mostly as expected with the liberal justices expressing support for the challenger’s position and the conservative justices expressing skepticism toward it.
Chief Justice John Roberts stated that if the court agrees that partisan gerrymandering is judiciable, it will be asked to hear a challenge to every redistricting plan. Roberts said if the court tried to explain to your average American the math formulas suggested by the challengers to determine when too much partisan gerrymandering occurred, the average American would dismiss the complicated math and assume the justices voted to support the political party of the president who nominated him or her. To this the challengers’ attorney responded that what the court may save avoiding these cases will result in a corresponding loss to our democracy.
On the left, Justice Elena Kagan perhaps most clearly embraced the test the challengers proposed asking their lawyer to explain how the test limits which redistricting plans can be challenged in court.
Newly confirmed Justice Neal Gorsuch joined the conservative justices in expressing concern the challengers had failed to articulate a workable test. And in a nod to state legislatures, he asked whether courts should be in the business of “revising state legislative decisions” by disallowing partisan gerrymandering.
The Supreme Court is expected to rule on this case by the end of June 2018.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.