Justice Kavanaugh can help fix gerrymandering
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The Supreme Court has for decades avoided definitively resolving the question of how much political gerrymandering is too much for the Constitution to tolerate. And so, when many legal commentators read the Court’s recent opinion in Gill v. Whitford—the latest gerrymandering case in which the Court failed to decide the issue—they let out a collective “here we go again.” Another hyped-up case, another unsatisfying ending. Same as it ever was.

That is true enough, but the simple headline ignores the implications of Justice Elena Kagan’s unusual concurring opinion. She wrote an opinion laying out a potential way forward that got the vote of only four, more liberal justices—one short of a majority—but it was clearly inspired by the thinking of Justice Anthony Kennedy, the Court’s retiring swing justice. If Judge Brett Kavanaugh, Kennedy’s presumed replacement, or any other justice signs on to Justice Kagan’s theory in the next gerrymandering case, which is possible, then courts may be able to step in and fix some of the biggest anti-democratic abuses that both political parties have engaged in.

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The plaintiffs in the Gill case challenged a Republican-favoring gerrymander in Wisconsin, and they proceeded for years primarily on a “vote dilution” theory of the case. The problem, as all nine justices of the Court agreed, was that for that theory to work, all plaintiffs must individually prove that they live in a gerrymandered district where their votes were wasted—but the plaintiffs here failed to do that.

That is where the majority of the Court stopped. But Justice Kagan went further and addressed the “associational theory” lurking in the shadows. And that theory might just be the key to unlocking this vexing issue.

The “associational theory” relies on the idea that gerrymandering can violate citizens’ First Amendment right to political association because an intentional gerrymander so disadvantages one party that it prevents its members from effectively “fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives).” In Justice Kagan’s words, “by placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions.”

But here is the key: Justice Kagan did not pluck the associational theory out of thin air. Instead, she relied almost exclusively on a solo opinion that Justice Kennedy, wrote in a 2004 case. And Justice Kennedy did not base his opinion on the Equal Protection Clause, which conservatives tend to read narrowly. Instead, his theory relies on the First Amendment, which conservative justices tend to read expansively to protect the free speech, religious freedom, and associational rights of a wide variety of individuals, groups, and even corporations. So if Kavanaugh shares Kennedy’s strong view of the First Amendment—which is likely—or if canny lawyers can persuade one of the other conservatives that the First Amendment extends to gerrymandering cases, then there may well be an unexpected coalition of at least five votes to do something about the problem.

And here is the best part: not only is the First Amendment-based associational theory one that can potentially garner five votes to end partisan gerrymandering, but it also has major implications beyond redistricting. After all, there are a number of other places in our system where one major party systematically weakens the ability of the other to play on a level playing field, and there are even times when the two major parties work together to erect barriers to a generally healthy democracy.

In selecting our president, for instance, most states award all of their electoral college votes to the statewide winner of the popular vote—but what is that system other than an intentional, and unconstitutional, effort to minimize the representation of all political parties but one? There are also a litany of other partisan-inflected restrictions on voting, ballot access, and the like that could, in time, also fall under this theory. Justice Kagan’s opinion, though having no actual legal effect today, could thus finally unlock a powerful new tool for future use.

In that light, it’s possible that her concurring opinion will end up being the “Follow the Yellow Brick Road” in our country’s search for a way to fix many of the broken features of our democracy. Sure, the bricks in her opinion aren’t as brightly colored as they were in Oz, and no one expects a wizard to be lurking at the end of it—but her roadmap to future litigants is clear and easy to follow. And with more hard work by enterprising litigators and a little bit of luck, there may well be good things for our democracy at the end of the road she brightly illuminated.

 Jason Harrow is Chief Counsel for EqualCitizens.US.