On Tuesday, October 3, the US Supreme Court heard oral argument in Gill v. Whitford, a case concerning the constitutionality of partisan gerrymandering in Wisconsin legislative districts.  The lower court held the Wisconsin plans violated the constitution by drawing legislative district maps that favored Republicans over Democrats.

The Supreme Court last addressed partisan gerrymandering in 2004.  At that time, the Court struggled with the notion of whether the plans were a “political question” and not subject to judicial review and whether there was an appropriate tool to analyze the degree of “partisan gerrymandering.” However, in Gill, the challengers maintain they have answered these questions and have presented the Court with a manageable standard to measure the level of partisan gerrymandering.

What are the facts in Wisconsin?  Republicans controlled both houses of the legislature and the Governor’s office so they drew the maps after the 2010 census.  The state is approximately 50%-50% in registered voters.  In fact, in the 2012 elections, Republicans won just under 50% of the statewide vote, but won 60 seats out of 99 in the state legislature.  Two years later, more of the same results followed. The plaintiff challenged these plans as being violative of the constitution.  The three-judge panel, by a vote of 2-1, bought his argument and threw out the legislative districts.

Why is this such a big deal?  Traditionally, local governments and state legislative bodies have used politics as a factor in drawing new plans.  Thus, if the Supreme Court upholds a three-judge panel decision in Wisconsin, challenges could be made to each of these plans that used partisanship in crafting their plans.  Further, as the new round of redistricting begins after the 2020 census, expect increased scrutiny for all these plans.

How did the argument go?  Apparently, it was one of the “hottest” arguments on redistricting in years.  When I was out for a morning walk, the line was very long and quite festive at 6:00 in the morning (argument started at 10).  Folks in line ranged from lawyers to redistricting advocates to kids holding places in line.  Needless to say, the discussion in line varied from the merits of the case to the prospects of the Washington Nationals in the baseball playoffs.

I sat on the side in the front of the courtroom about twenty feet away from new Justice Gorsuch.  Since I was at the front of the court room, I had a great vantage point to watch the attorneys who argued the case.  They all did an outstanding job and handled the Justice’s questions expertly.  Former actor and California Governor Arnold “the Terminator” Schwarzenegger attended the argument too.  The Terminator has long eschewed the use of gerrymandering and has championed nonpartisan citizen redistricting commissions.

The State of Wisconsin first argued the Court didn’t have standing.  Generally, the Supreme Court has held that plaintiffs in racial- gerrymandering challenges must be from the specific district being challenged.  In this case, the plaintiff resides in a heavily Democratic district in Madison so the issue is does he have standing to challenge the entire state map.  Justice Kennedy asked whether a challenge under the First amendment would work.  Essentially, he questioned whether a plaintiff would have standing to bring this suit since his first amendment right would be to have a strong political party of his choice, and not a diminished one, due to partisan drawing.  Chief Justice Roberts and Justice Alito didn’t seem to buy this argument, claiming it would be inconsistent with the court’s precedent.  The plaintiff’s attorney argued that gerrymandering challenges were different because in a partisan gerrymandering challenge, a plaintiff alleges one party’s votes are diluted across the entire state.

On to the merits.  The “conservative” justices, Roberts, Alito, and Gorsuch, (Justice Thomas was silent) each wondered out loud whether the court needed to get involved in resolving political disputes concerning redistricting plans.  In fact, Chief Justice Roberts maintained that since all redistricting challenges appeals go directly to the Supreme Court, the Court would hear an increased number of these cases and the Court’s integrity could be harmed because the “public” would perceive the Supreme Court decisions as favoring one political party over the other.  Counsel for the Plaintiff argued back that if the Court doesn’t intervene, then democracy would be harmed. The “liberal” justices, Ginsburg, Kagan, Sotomayor, and Breyer, seemed inclined to accept all the cases.  Justice Ginsburg argued the court needed to intervene to protect “the precious right to vote” and Justice Sotomayor questioned “what is the value to democracy of a partisan gerrymander”.

The balance of the argument focused on what is a workable standard to measure partisan gerrymandering.  Each justice dislikes gerrymandering even going as far as Justice Alito stating, “it is distasteful.”  The justices recognized politics is a factor in drawing the districts; therefore, the issue is when does it become a constitutional violation.  In the trial court, the majority discussed an “efficiency gap” analysis that measured wasted votes.  Basically, the standard determined what percentage of a political party’s vote is needed to elect a candidate and anything over that, is considered a “wasted vote”.  Plans with high wasted votes (over 7%), would be deemed unconstitutional.  Obviously, there is much disagreement about whether this is a manageable standard for the Court to prescribe as the standard for all future redistricting plans.

This “measurable standard” is the sticky wicket.  Justice Kennedy put out a plea in 2004 to come up with a workable standard.  Will the “efficiency gap” standard meet the criteria for a majority of justices?  Given Justice Kennedy’s flirtation with partisan gerrymandering in 2004, all eyes squarely are on him. Since he only questioned the counsel challenging the lower court ruling and not the plaintiffs, some observers predict this bodes well for the plaintiffs.  I’m not ready to buy this quite yet but clearly, the other 8 justices (even though Justice Thomas was silent at oral argument, his position in redistricting cases is well staked out) seem pretty clear where they stand on the issue so he will be the deciding vote.  A ruling is expected by June of 2018.