Will partisan gerrymandering survive? Our report from yesterday’s argument at the U.S. Supreme Court

The majority of justices on the U.S. Supreme Court made clear Tuesday that partisan gerrymandering is distasteful and does a disservice to voters, but it remains unclear if they will intervene.

“Could you tell me what the value is to democracy from political gerrymandering?” asked Justice Sonia Sotomayor. “How does that help our system of government?”

The case before the justices was Gill v. Whitford, a challenge to Wisconsin’s 2011 state legislative redistricting map drawn by the Republican-controlled legislature.

The Court could outlaw partisan gerrymandering or finally create a test by which the constitutionality of such a process could be determined. Either way, there would be sweeping consequences for state legislatures across America. Or justices could simply uphold the status quo by determining that partisan gerrymandering is constitutional.

It’s a case that North Carolinians are keeping a close eye on as two partisan gerrymandering cases challenging the state’s remedial congressional maps are pending in the federal court.

All eyes in the courtroom were on Justice Anthony Kennedy, the Court’s frequent swing vote, who voted 13 years ago not to take up partisan gerrymandering, but left hope for action in the future if a workable standard could be set.

He was the first to begin the line of questioning at the hearing Tuesday but played his cards close to the vest so as not to give any hints about which way he’d vote.

He asked questions about what type of violation partisan gerrymandering could constitute—first amendment or equal protection—and a hypothetical scenario in which a state statute or constitution dictated maximizing one party’s power.

“I don’t think that in world where the legislature is required to and is, in fact, complying with a number of other metrics and is as one of those things taking into account partisan advantage, that you’ve proven a constitutional violation,” said Erin Murphy, who was representing the Wisconsin State Senate.

Some justices seemed unconvinced.

“It’s not a manageable standard that you cannot have a law that says draw maps to favor one party or the other?” asked Justice Samuel Alito, adding a short time later, “That seems like a perfectly manageable standard.”

Anita Earls, Executive Director of the Southern Coalition for Social Justice (SCSJ) in North Carolina, attended Tuesday’s hearing and said she thought that point of discussion was significant for the state.

“The North Carolina General Assembly enacted a redistricting criterion that required partisan gerrymandering for Republicans,” she said. “They’re essentially doing just that.”

Earls, who is the lead attorney in North Carolina v. Covington, the state’s most recent racial gerrymandering case which united the U.S. Supreme Court justices, seemed heartened by the hearing.

“Hopefully we will see the Court issue some guidance, so I would say [to North Carolinians] ‘take heart and be encouraged,’” she said.

There was tremendous public interest in the case, which could become landmark litigation. People started lining up at the Supreme Court the night before the hearing.

Dustin Chicurel-Bayard, who works at SCSJ, got in line at 8:30 p.m. Monday and said he was the 16th person in line. It was cold but he slept on the concrete outside to make sure he got a seat for his first trip to the court.

“It filled out pretty quickly,” he said of the line. “There was just such a tremendous amount of interest that by the early morning hours, the line wrapped all the way around the building. It was encouraging to see so much interest from the public.”

There were also crowds of people demonstrating outside the courthouse for fair voting maps.

Arnold Schwarzenegger, an actor, Republican and former governor of California, held a press conference outside the Supreme Court to call for an end to partisan gerrymandering.

“Normally when an actor comes out of the court, it’s because he got probation but this is a little different because we are here today to ask the Supreme Court to fix something that the politicians will never do,” he said. “As Einstein said, ‘those who created the problem will not be able to solve the problem.’ And this is exactly what we have done here because the politicians are only interested in one thing and that is to stay in power, to stay in power no matter what—it doesn’t matter if you’re Democrat or Republican.”

Left-leaning justices on the Court expressed worry over what partisan gerrymandering meant for voters.

“If you can stack the legislature in this way, what incentive is there for a voter to exercise his vote?” asked Ruth Bader Ginsburg. “What becomes of the precious right to vote?”

She likened partisan gerrymandering to racial gerrymandering.

This bears a certain resemblance because the effort here, intentionally, was to create as many Republican districts,” she said. “So is max-Republican … doesn’t it have the same problem that “max-Black” did?”

Misha Tseytlin, Solicitor General for the state of Wisconsin, said it did not because “politics is not a suspect classification like race.”

Conservative justices on the Court tried to evoke an answer from counsel about what a measurable standard would be for determining the constitutionality of partisan gerrymandering.

“Gerrymandering is distasteful,” said Alito, who was appointed by former President George W. Bush. “But if we are going to impose a standard on the courts, it has to be something that’s manageable and it has to be something that’s sufficiently concrete so that the public reaction to decisions is not going to be the one that the Chief Justice mentioned, that this three-judge court decided this, that—this way because two of the three were appointed by a Republican president or two of the three were appointed by a Democratic president.”

Chief Justice John Roberts said that intervening in partisan gerrymandering could “cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”

He said his main problem with the case was the inherent politics in what could become a Pandora’s Box of litigation that would get to the Supreme Court.

“We will have to decide in every case whether the Democrats win or the Republicans win,” Roberts said. “So it’s going to be a problem here across the board.”

Paul M. Smith, an attorney who argued on behalf of the plaintiffs in the case, told the justices that they were the only ones who could fix partisan gerrymandering.

“Politicians are never going to fix gerrymandering,” he said. “They like gerrymandering. The problem in this area is that if you don’t do it, it is locked up.”

He also pointed out that technology had changed imperfect gerrymandering of the past.

“Gerrymanders now are not your father’s gerrymander,” Smith said. “These are going to be really serious incursions on democracy if this court doesn’t do something … this is really the last opportunity before we see this huge festival of new extreme gerrymanders all done along the model of Wisconsin but probably even more serious.”

Tseytlin argued that partisan gerrymandering was worse in 1972 than in 2014 and that the situation was not as dire as the plaintiffs made it seem.

“You are always going to have scare tactics,” he said. “You are always going to have partisan intent.”

Justice Neil Gorsuch, who was appointed by President Donald Trump, questioned courts’ role in intervening in partisan gerrymandering, indicating that the Constitution dictates Congress take care of it. He cited the Fifteenth, Nineteenth, Twenty-Sixth and Fourteenth Amendments.

“Aren’t those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?” Gorsuch asked.

Ginsburg, clearly annoyed, quipped back, “Where did one-person/one-vote come from?”

Three of the five conservative justices on the court (Kennedy and Clarence Thomas refrained) criticized social science cited by the plaintiffs in the case as a measure of partisan gerrymandering. Roberts described it as “sociological gobbledygook,” and Alito questioned the accuracy of newer research when put to the test after 200 years of one constitutional standard.

Gorsuch likened one of the partisan symmetry tests to his steak rub, which he apparently likes with some turmeric but doesn’t plan on telling anyone what ingredients he actually uses.

“And so what’s this Court supposed to do, a pinch of this, a pinch of that?” he asked.

Smith responded by suggesting that the Court start with a step-by-step plan put forth by left-leaning Justice Stephen Breyer as a manageable test.

Step one — was there one-party control of the redistricting? “If the answer to that is no, say there was a bipartisan commission, end of case,” Breyer said. “Okay?”

Step two — is there partisan symmetry? Evidence of that, he said, is a party that got 48 percent of the vote got a majority of the legislature.

Step three — is there going to be persistent asymmetry over a range of votes?

Step four — if there is, you say is this an extreme outlier in respect to asymmetry?

Step five — is there any other justification; was there any other motive?

“Now, I suspect that that’s manageable,” Breyer said of the steps. “I’m not positive. And so I throw it out there as my effort to take the technicalities and turn them into possibly manageable questions for a response.”