Will the Supreme Court draw the line on gerrymandering?
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One of the most far-reaching issues reaching this court this year and next is the issue of partisan gerrymandering. Gerrymandering is the practice by which one party jimmies the lines so that the other side loses no matter who has the majority of votes. Since Judge Merrick GarlandMerrick Brian GarlandKey appeals court to start livestreaming oral arguments The Hill's Morning Report — Sponsored by CVS Health — Trump’s love-hate relationship with the Senate Grassley: Unlikely that Trump, McConnell would want to follow 'Biden Rule' MORE was not confirmed for the seat now occupied by Justice Neil Gorsuch, Justice Anthony Kennedy is the crucial vote. And there has been some ground to believe he might lean toward a way to outlaw the practice.

In 2004, in Vieth v. Jubelirer, Justice Kennedy, concurring only in the result, wrote:

I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the Court seems to acknowledge it is not.

Just two years ago, in a case coming from Arizona, Kennedy joined an opinion for the Court written by Justice Ruth Bader Ginsburg, which reads in part:

This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power. “[P]artisan gerrymanders,” this Court has recognized, “[are incompatible] with democratic principles.”

For that language, she specifically cited Justice Kennedy’s earlier language.

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Now he has joined an opinion of Justice Samuel Alito joined only by Chief Justice John Roberts in addition to Kennedy, in which Alito argues strongly for the legitimacy of gerrymandering.

 

The case turned on whether the lines were drawn to discriminate on the ground of race. But the state’s justification was that the gerrymandering was partisan, not racial. That justification depends on the constitutional legitimacy of designing legislative district lines for partisan reasons. Alito wrote:

[T]he State has articulated a legitimate political explanation for its districting decision. …

As we have acknowledged, “[p]olitics and political considerations are inseparable from districting and apportionment,” … and it is well known that state legislative majorities very often attempt to gain an electoral advantage through that process. ... Partisan gerrymandering dates back to the founding … and while some might find it distasteful, “[o]ur prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering.

That leaves us pondering the meaning of “constitutional” in the phrase “constitutional political gerrymandering.” Is that a way of saying political gerrymandering is constitutional, or that it is sometimes constitutional but not others?

Back in 2006, Kennedy had written:

A brief for one of the amici proposes a symmetry standard that would measure partisan bias by "compar[ing] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote." … Under that standard the measure of a map's bias is the extent to which a majority party would fare better than the minority party, should their respective shares of the vote reverse.

But Kennedy was not satisfied that the symmetry standard would be “reliable.” He gave several reasons. The “degree of asymmetry may in large part depend on conjecture about where possible vote-switchers will reside.” The symmetry standard depended on “a hypothetical state of affairs.” And “More fundamentally” the symmetry standard failed to “provid[e] a standard for deciding how much partisan dominance is too much.” Kennedy would not “altogether discount[] its utility in redistricting planning and litigation” but concluded that “asymmetry alone is not a reliable measure of unconstitutional partisanship.”

The symmetry standard had won considerable acceptance among political scientists. And it had gained four votes on the court, making Kennedy’s opinion crucial. In light of Kennedy’s resistance to symmetry, however, political scientists went on to develop other ways of measuring the extent of gerrymandering that are easier to understand. 

Making its way to the court is a case raising an efficiency or wasted votes standard. It looks at how many of the votes for candidates of each party are wasted, that is either wasted because on the losing side or wasted because they were more than needed to win. That essentially tracks the process of gerrymandering that involves cramming (or “stacking” in gerrymandering parlance) as many opposition voters into as few districts as possible, conceding those districts but wasting the votes because the opposition voters in those districts are considerably more than needed to win, and spreading (or “cracking”) the remaining votes in districts dominated by friendly voters but by slimmer majorities (thus wasting fewer friendly voters). The results of that procedure can reliably distort election returns, giving majorities of elected representatives to minorities of voters. Gerrymandering underlies the results of our political system.

Unless one of the “liberals” on the court defects, Kennedy’s reaction to the efficiency or wasted votes standard will be determinative. But the Alito opinion is ominous, because if gerrymandering as properly measured is permissible, better standards of measurement will be legally meaningless.

That makes even more tragic the loss of Garland for the open seat on the Supreme Court and even more crucial other measures to prevent the Republicans from holding their majorities in the Senate, which confirms judicial nominations, the House of Representatives, which can ban election practices, and state legislatures, which do the gerrymandering.

All of us who believe that the voters are entitled to choose their representatives instead of the representatives choosing their voters were counting on Justice Kennedy to participate in a majority to define a constitutional limitation. We’re still praying.

 

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. A widely recognized constitutional scholar, he has served on the NY Civil Liberties Union board, the NY Advisory Committee to the US Civil Rights Comm’n, and is the Jay & Ruth Caplan Distinguished Professor at Albany Law School.


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