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Tea Leaves on Partisan Gerrymandering

April 25th, 2018, 11:37am by Sam Wang

Update: At Election Law Blog, Rick Pildes of NYU points out slightly different tea leaves. In his reading, Kennedy got stuck writing two October opinions because he had to pick up pieces left by a failed Gorsuch opinion.

Yesterday the Supreme Court heard oral arguments on a racial gerrymandering case, Abbott v. Perez. That’s a complicated case. For a rundown, see Amy Howe over at SCOTUSBlog. The vote might come down to Anthony Kennedy, the usual swing vote in gerrymandering cases. He is generally unfavorable to such claims. However, the liberals argued that a win by Governor Abbott could open the door to a flood of lawsuits by lowering the bar for an appeal to the Supreme Court (currently there has to be at least an injunction). Whatever the case, it seems likely that the justices will arrange themselves into two wings, with Kennedy’s vote up for grabs, like this vote (replace Scalia with Gorsuch):

But that’s not my topic today. Instead I want to engage in some speculation on the partisan gerrymandering cases. Yesterday, a small clue came from an opinion issued by the Court yesterday in an unrelated case. Bottom line: I think reformers will win in Maryland, and they will win or have more work to do in Wisconsin and North Carolina.

The opinion in question concerns an unrelated case from October, Jesner v. Arab Bank. It was written by Justice Kennedy. Usually, justices are only assigned one opinion for a given month of cases – and Whitford was also an October case. The only justices who haven’t written for that month are Roberts and Gorsuch. Given the rank-ordering of the justices’ preferences, that seems to suggest the following possibilities, in order of descending likelihood:

  1. Roberts writes the opinion, and it’s a 6-3 win for reformers (Whitford) or something more complicated; or a 5-4 win for Wisconsin (Gill).
  2. Kennedy writes a second October-based opinion, with the same possibilities or a 5-4 win for Whitford.
  3. Gorsuch writes the opinion, and it’s a 5-4 win for Gill.

I pause to note that in scenarios #1 and #3, Roberts and Kennedy will vote together. #2 is possible in part because of the speculation (see Rick Pildes’s essay) that Gorsuch couldn’t build a consensus on Jesner, and Kennedy had to pick up the pieces.

Now let us consider the fact that the Court has a second case, Benisek v. Lamone, from Maryland. Surely the Court took a second case because it wants to do something about partisan gerrymandering. That, plus the unlikelihood of assigning such an important opinion to Gorsuch, suggests that at a minimum, Gill won’t win.

But what is the value of adding Benisek? Here are two possibilities:

  • To avoid the appearance of bias, the Court wanted one gerrymander committed by each party – Maryland by Democrats, Wisconsin by Republicans.
  • There was something wrong or incomplete with the Wisconsin case’s details, for purposes of the law they want to lay down.

This is not an either/or situation; both could be true. And since Roberts cares about appearances, he could have been the one pushing to take Benisek.

In the Harvard Law Review Blog, I argued that the key difference between the two casesĀ is that Maryland is a single-district gerrymander, whereas Wisconsin is a statewide gerrymander. In Whitford oral argument, Roberts and Kennedy noted this point and linked it to First Amendment-based reasoning (see pages 4-5 of the transcript):

JUSTICE KENNEDY: ….suppose the Court — and you will just have to assume, we won’t know exactly the parameters of it — decided that this is a First Amendment issue, not an equal protection issue. Would that change the calculus so that, if you’re in one part of the state, you have a First Amendment interest in having your party strong or the other party weak?


CHIEF JUSTICE ROBERTS: …I think the argument is pretty straightforward which you, in your district, have a right of
association and you want to exercise that right of association with other people elsewhere in the state. And if you can’t challenge the
districting throughout the state, then your claim seems to be — there is no way for to you to raise your claim.

To me, this suggests that Kennedy and Roberts are on the verge of finding a new right in the First Amendment: the right for partisans to be represented on a statewide basis. That would be a home run for reformers.

However, there is another possibility: the Court takes a more restrained approach. They could simply find that in Benisek, Maryland Democrats committed a single-district gerrymander. This is an extension of racial gerrymandering doctrine of the past. That would also make new law, since until now, the Court has held that single districts may be drawn for a wide variety of reasons, with the exception of race. The Court would have to add a second exception for excessive partisanship. In this scenario, Whitford gets sent back for a do-over.

In either scenario, Kennedy writes the Benisek opinion for the reformers, Roberts writes the Whitford opinion, and both votes are 6-3. That would mean five votes for the new doctrine, even after Kennedy or a justice from the liberal wing leaves the Court.

Here at the Princeton Gerrymandering Project, we are divided about what will be in the Whitford opinion. I think Wisconsin Democrats may win, whereas Brian Remlinger thinks the lower court will have to try again, taking into account whatever new doctrine the Court lays down. Other team members have not weighed in yet.

Finally, what about the North Carolina case, Rucho v. League of Women Voters? Rucho resemblesĀ Whitford, so they may also need a do-over. Too bad, since the lower court wrote a well-organized opinion. No rest for the weary.

Tags: Redistricting · Supreme Court

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