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Gill v. Whitford

October 1st, 2017, 12:08pm by Sam Wang

On Tuesday at 10:00am, the Supreme Court will hear oral arguments in the case of Gill vs. Whitford, which concerns extreme partisan gerrymandering. Justice Ginsburg has suggested, with some justification I think, that this could be the most important case of the Court’s term. The tone and content of oral arguments are often predictive of the outcome. I will attend in person. And of course I will be watching the leaderboard at FantasySCOTUS.

As PEC readers know, my interest arises from my analysis which offers a standard that meets legal constraints set in place by the Court. Read our amicus brief or watch our great explainer video. For a deep dive into why partisan gerrymandering has soared, see our piece in The American Prospect.

The outcome is likely to hang on the vote of Justice Anthony Kennedy. To quote Amy Howe of SCOTUSblog:

…the state’s ability to muster the five votes that it needed to put the lower court’s order on hold could bode poorly for the challengers, because one factor that the justices had to consider in making their decision was whether the state is likely to succeed on the merits of its claim. On the other hand, the case appears to have been scheduled for oral argument earlier than it might normally have been: Although the justices did not announce until June 19 that they would review Gill v. Whitford, it leapfrogged over several other cases (including two granted in February, two granted in March and one granted in April) to take a spot on the October argument calendar. That could suggest that the justices intend to try to decide the case quickly, which would in turn allow new maps to be drawn sooner even if the district court’s order is not in effect.

Attendees are not allowed to speak in the courtroom. Otherwise the bingo card above could help while the time away!

Tags: Redistricting

9 Comments so far ↓

  • 538 Refugee

    After reading the article I’d be surprised, pleasantly of course, if this challenge succeeds.

    • LondonYoung

      I don’t think the article is insightful.

      Had the state prevailed at the district court level the tea leaves would be easier to read, but given that the lower court wants to throw the districting plan out, all we can see is that J. Kennedy doesn’t want anything happening until he gives the say so on what that will be.

      As Sam has said, the game here is: does Kennedy think a gerrymandering standard is now available?
      Maybe he does and maybe he doesn’t, but he isn’t signing off on the efficiency gap picked by the district court. If there is to be a standard, Kennedy will be picking it.

    • 538 Refugee

      I’ve read that things like that generally only happen if they feel the outcome will ‘likely’ be decided in one direction and they want to protect that outcome. I must admit I’ve buried myself in electronics for the past few months to ‘settle my stomach’ so to speak. You think he court might be getting a little concerned and decided to be the adults in the room?

    • LondonYoung

      If Kennedy remands by saying that “efficiency gap is no good, but lower court should pay attention to the Scotus amicus briefs and decide again” then people will still say that “a stay is predictive – see, efficiency gap was thrown out”.
      (This is, I believe, the result you want.)
      And note the use of a Wang-esque brain trick here on the argument about stays: if prediction X is disputed by argument Y , but then X comes true, will it invalidate argument Y? If not, then Y was not a relevant argument.

      Note that I am changing my stance a bit now. I don’t think Kennedy is going to pick the standard, but I do think he is going to ask the district court to try another standard. Then it will go back up to Scotus for a nationwide stamp of approval if Kennedy likes it. It may be a long winter for you Sam.

    • Sam Wang

      Now that is an interesting possibility, though the lower court did actually say that the efficiency gap was informative but not a core part of the definition.

      As for a long winter…I am okay with getting another bite at the apple. Certainly that is better than an adverse outcome.

  • Ray J

    The efficiency gap is not the answer to a gerrymandering standard.


    • Sam Wang

      Did it occur to you to read anything about *our* standards, which overcome the proportional-representation problem you cite, before promoting this video?

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