Partisan gerrymandering exists because the Supreme Court allows it to exist. Although such gerrymanders are a form a viewpoint discrimination, which violates the First Amendment, Republican appointees to the Supreme Court have been reluctant to even let federal courts consider partisan gerrymandering cases — much less strike down actual gerrymanders.
That could all change, however, as the Supreme Court just announced it will hear Gill v. Whitford, a case that presents the most promising challenge to a partisan gerrymander in more than a decade. In Whitford, a divided three-judge panel held, in an opinion by Reagan-appointed Judge Kenneth Ripple, that Wisconsin’s state assembly maps violate the Constitution.
Notably, the plaintiffs’ arguments in Whitford are tailor-made to address a concern Justice Anthony Kennedy, the Court’s ostensible “swing” vote, raised in a 2004 opinion. In Vieth v. Jubelirer, the Court’s other conservatives joined an opinion by Justice Antonin Scalia, which would have slammed the door on partisan gerrymandering suits entirely. Kennedy, however, left the narrowest of cracks open in his separate concurrence.
Indeed, even in announcing that the Court will hear the case, the justices indicated that there is still considerable support for Scalia’s approach. The Court’s order provides that “further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits,” suggesting that many of the Court’s members think that federal courts do not have the power to hear gerrymandering cases.
Nevertheless, there is a chance that Kennedy will break with the Court’s conservative bloc, based on his opinion in Vieth.
Though Kennedy worried about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights” — that is, the fact that it is difficult to come up with an objective test courts can use to determine which maps are gerrymanders — he also concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
Whitford accepts this challenge by proposing a mathematical formula that judges can use to identify partisan gerrymanders. Gerrymanders work by forcing one party to “waste” votes. Voters are either “cracked,” pushed into districts where their party has no chance of winning; or “packed,” crammed into districts where their party has such an overwhelming majority that additional votes for their candidate are superfluous.
A gerrymander, scholars Nicholas Stephanopoulos and Eric McGhee, who devised the formula at the heart of Whitford, explain “is simply a district plan that results in one party wasting many more votes than its adversary.”
Stephanopoulos and McGhee’s formula counts the number of wasted Democratic votes that results in an election held under a particular map, and compares it to the number of wasted Republican votes. Maps that create a large disparity may then potentially be struck down as gerrymanders if the plaintiffs can also show that they were drawn with partisan intent.
Whether this formula will win Kennedy’s favor, of course, remains to be seen. And there’s also a dark cloud hanging over this case — and, indeed, the next several decades of life in the United States — that will matter just as much as whether Kennedy buys the plaintiffs’ theory in Whitford.
There are persistent rumors that Justice Kennedy plans to retire soon, effectively giving his seat to Donald Trump, who is likely to fill it with another hardline conservative similar to Neil Gorsuch. If Kennedy does retire, the battle to end partisan gerrymanders is likely doomed — as are, among other things, the battle to save Roe v. Wade, to preserve many civil rights laws, and to see any new progress on LGBTQ rights from the federal judiciary.
UPDATE: In an ominous sign for opponents of gerrymandering, the Supreme Court issued a party-line decision staying the lower court’s decision in Whitford, which struck down the Wisconsin maps.