A Supreme Court decision invalidating a partisan gerrymander is the Holy Grail of voting rights litigation and, just like the Arthurian Grail, has evaded the boldest and the brightest seekers for many years. And yet Tuesday’s oral arguments in Rucho v. Common Cause and Lamone v. Benisek — challenges to two of the most aggressive gerrymanders in the country — offered a glimmer of hope.
Just over a year ago, there appeared to be five justices ready to join an opinion striking Wisconsin’s especially egregious state legislative gerrymander. Instead, Justice Anthony Kennedy chose to take his crucial fifth vote and quite literally go home. With the nomination of archconservative Judge Brett Kavanaugh to fill Kennedy’s seat, an anti-gerrymandering decision appeared further from reach.
On Tuesday, however, Kavanaugh appeared skeptical of one of the primary pillars that conservative justices have used in the past to prop up gerrymandering. That skepticism, combined with some quick thinking by Justice Elena Kagan, may ultimately prove enough to take down gerrymanders in North Carolina and Maryland.
Given the Supreme Court’s history of flirting with an anti-gerrymandering decision and then coyly backing away, no one should assume yet that the court will ultimately hold that the Constitution limits partisan gerrymanders. But Tuesday’s hearing gave something unfamiliar to Americans who, whipsawed by the combination of gerrymandering, Senate malapportionment, and the Electoral College, have come to fear that the United States will descend into an anti-democratic death spiral: Hope.
Tuesday’s duo of cases present both major political parties at their worst.
In Rucho, Republicans drew congressional maps in the swing state of North Carolina that were designed to ensure that the state’s delegation would have 10 Republicans and 3 Democrats. The co-chair of the state’s redistricting committee literally bragged that they settled on this goal because it wasn’t “possible to draw a map with 11 Republicans and 2 Democrats.”
Meanwhile, Benisek involves a Democratic gerrymander in Maryland, executed to ensure that a congressional district that historically was held by a Republican would become a Democratic district. As then-Gov. Martin O’Malley (D) bragged about this gerrymander, the goal was to “put more Democrats and Independents into the Sixth District” in order to ensure “the election of another Democrat.”
Defenders of North Carolina’s gerrymander were represented by Paul Clement, the de facto solicitor general of the Republican Party who often argues Supreme Court cases where the GOP has a great deal at stake. That meant that Clement had to defend a map that consistently produced the same 10 to 3 split in North Carolina’s congressional delegation, even in election years when Democrats won the statewide popular vote. (Currently, North Carolina’s congressional delegation has only nine Republicans. A special election will decide who controls a vacant House seat, after the original result in that election was thrown out thanks to alleged Republican cheating unrelated to the gerrymander.)
Clement’s defense of this map was audacious. He spent much of the oral argument lambasting the very idea that the Constitution requires anything resembling “proportional representation” — that is, any rule which requires a state’s congressional delegation to roughly approximate the actual partisan makeup of the state. It was a bold move, largely because it’s impossible to describe why gerrymandering is bad without speaking in terms of how it produces electoral results that do not resemble the will of the people.
Yet is was also a predictable move by a lawyer tasked with assembling five Republican votes in favor of gerrymandering. More than three decades ago, in a case called Davis v. Bandemer, Justice Sandra Day O’Connor laid out what she believed to be a parade of horribles that will flow from any Supreme Court decision invalidating a partisan gerrymander. “There is simply no clear stopping point,” O’Connor wrote in 1986, “to prevent the gradual evolution of a requirement of roughly proportional representation for every cohesive political group.”
This fear of proportional representation became conservative orthodoxy. Justice Antonin Scalia repeated it in his 2004 plurality opinion in Vieth v. Jubelirer, and the Supreme Court’s most likely votes in favor of gerrymandering — Justice Samuel Alito, Neil Gorsuch, and, to a lesser extent, Chief Justice John Roberts — all seemed sympathetic to Clement’s argument.
Kagan’s quick thinking
The most surprising moment of the morning came shortly before Clement stepped away from the podium. After silently listening to Clement’s argument, Kavanaugh chimed in to suggest that proportional representation provides the courts with a “judicially manageable” standard to assess whether a particular map is gerrymandered.
The search for a “judicially manageable” way to determine which maps count as partisan gerrymanders animated voting rights lawyers for 15 years. Kennedy’s controlling opinion in Vieth refused to strike down the legislative map at issue in that case, but it also offered a seductive promise to future litigants. “If workable standards do emerge to measure” which maps impose too many burdens on the disfavored party, the opinion concluded, then “courts should be prepared to order relief.”
As a parade of five different attorneys took the Supreme Court’s podium, Kavanaugh repeatedly came back to this question of whether the Constitution can be read to forbid egregiously disproportional maps. Kavanaugh’s apparent receptivity to a proportionality standard opens the door to a decision striking down the gerrymanders in Rucho and Benisek.
But mere receptivity may not be enough.
While Kavanaugh kept coming back to the subject of whether the Constitution can be read to mandate roughly proportional representation, Roberts fixated on a closely related question. Rucho, he suggested, is an “extreme case.” But what is a test that future courts can apply in less obvious cases to assess whether a map is an unconstitutional gerrymander? It’s one thing to say that maps must be “roughly proportional,” but how proportional must they be?
One solution to this dilemma is to use a mathematical formula. That was the approach the plaintiffs used in the Wisconsin case the Supreme Court ultimately decided not to decide last year. On Tuesday, Justice Stephen Breyer suggested that, at the very least, maps should be thrown out if a party that gets over 50 percent of the vote is unable to capture more than a third of the legislative seats.
But the most interesting exchange of the two hours of argument came close to the very end, when Justice Kagan floated a non-mathematical test that Kavanaugh and potentially even Roberts appeared open to enshrining in law.
To prevail, Kagan suggested, a plaintiff would not only need to show that a map disadvantaged one party, but also that the legislature intended this result. Proving intent is easy in Rucho and Benisek, thanks to the elected officials who openly bragged about their intentions — but once the Supreme Court announces that intentionally gerrymandering is not allowed, lawmakers will learn to shut their mouths.
After that happens, Kagan continued, a court may still be able to infer an intent to gerrymander when a map is particularly egregious, but the partisan skew of that map would have to be “really dramatic” to justify such an inference.
It’s not a perfect standard — as Kagan noted, the eventual result will be that only the “worst of the worst” maps will be struck down. But it’s something. And it gives the court a way to strike down the maps in Rucho and Benisek without injecting itself into every future redistricting dispute, as Roberts fears.
Will that ultimately be enough to pull Roberts or Kavanaugh into an alliance with the liberal justices? We won’t know the answer to that question until June.
But when the Supreme Court began its session today, Rucho and Benisek appeared certain to end in a 5-4 decision in favor of gerrymandering. Now, it looks like Kagan and Kavanaugh could form an alliance that will produce a very different outcome. They may bring us the Holy Grail.