Gill v. Whitford is the most important case the Supreme Court has heard in years. As Paul Smith, the attorney arguing against Wisconsin’s gerrymandered maps in Whitford, told the Court, if the justices allow such aggressive gerrymanders to persist, “the country is going to lose faith in democracy.”
Whitford involves the Wisconsin state assembly maps — maps that were drawn to make it virtually impossible for Republicans to lose their majority. As the lower court, which struck down those maps, explained, “in 2012, the Republican Party received 48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the Wisconsin Assembly. In 2014, the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats.”
The question in Whitford is fundamental: whether the state of Wisconsin will once again become a democracy, or whether only one party is allowed to make laws in that state.
The good news for Smith, and for other opponents of partisan gerrymanders, is that there appear to be five votes to strike down Wisconsin’s maps. Justice Anthony Kennedy, the Court’s “swing” vote in this case, asked a number of critical questions of the lawyers defending the gerrymandered maps and literally no questions of Smith. At one point, he appeared to grow angry with an attorney defending the maps for not answering one of his questions.
Though it is up in the air how deeply the Court will cut into the practice of partisan gerrymandering, a smart gambler would bet on Wisconsin’s maps going down.
The conservative flank of the Court’s defense of the map can be summarized in four words: “John Roberts hates math.” What makes Whitford such an interesting case is that the plaintiffs do not simply point to the partisan results achieved by the state assembly map and demand that it be struck down; they offer several mathematical formulas that can be used to sort out maps that are likely to be partisan gerrymanders. These formulas answer an important question that Kennedy asked in a previous case — what kind of “workable standard” can lower courts use to sort out which maps must be struck down?
Roberts, however, recoiled at the very idea that courts would play around with something so vulgar as maps and social science. In an especially candid moment, he told Smith that his primary concern is that, should Smith prevail, multiple partisan gerrymandering cases will be brought to the Court in the future, and the justices will have to explain why they side with a particular party in each case. If the Court’s response is a mathematical equation, Roberts feared, voters will find that answer unsatisfying, and the Court’s reputation will suffer.
This concern with the Court’s reputation is what sparked Smith’s comment that “if you let this go . . . the country is going to lose faith in democracy.” It also triggered an especially passionate response from liberal Justice Stephen Breyer.
Rather than showing the people an equation and telling them that that is the reason why a map was struck down, Breyer offered a much simpler explanation. “If party A wins a majority of the vote, it controls the legislature. That seems fair!”
Kennedy was fairly silent for most of the argument — and the fact that he did not challenge a single one of Smith’s claims is a good sign for Smith. Early in the argument, Kennedy appeared to signal that he thought partisan gerrymanders violate the First Amendment, a view he also hinted at in a 2004 opinion. When Erin Murphy, one of two attorneys defending Wisconsin’s maps, suggested that the state’s maps are acceptable because the districts are not weirdly shaped, Kennedy pushed her on whether that was enough to save the maps. Later in the argument, after Murphy had moved on to another topic, Kennedy brought her back to this question, testily insisting that she didn’t answer it the first time.
While Kennedy was mostly quiet, his presence loomed over the entire case. Conservative Justice Samuel Alito and Neil Gorsuch, who occupies the seat that Senate Republicans held open until Donald Trump could fill it, spent much of the argument poking holes in Smith’s claim that there is a “workable standard” that can be used to assess gerrymanders. Liberal Justices Breyer, Ruth Bader Ginsburg and Elena Kagan spent much of the argument trying to construct a standard that would win Kennedy’s vote.
If a single standard did emerge, it will probably resemble a multi-part test proposed by Justice Breyer, which asks questions like whether a single party controlled the map-drawing process, whether the maps give an asymmetrical advantage to one party, and whether that advantage is likely to persist over many elections. But there is no certainty whether the ultimate standard will be robust enough to catch more subtle gerrymanders, or even if Kennedy won’t ultimately flip back to the conservatives.
In the end, though, a majority of the Court appeared to understand the gravity of this moment and the threat facing American democracy — one fact that came up several times is that computers and data analysis have grown so sophisticated that gerrymanders are only going to get more and more effective in entrenching one-party rule. As Justice Ginsburg warned, “if you can stack a legislature in this way, what incentive is there” to vote?
Justice Kennedy looks inclined to restore that incentive to voters. We will most likely know in June whether the Court’s right flank managed to pull him back into their fold.