On Wednesday, the court took on partisan gerrymandering for the second time this term in oral arguments for Benisek v. Lamone. In October, the court heard arguments in Gill v. Whitford, a different case about the same thing, but it hasn’t handed down an opinion yet. Everyone hoped Benisek would help the justices settle on a test to gauge extreme gerrymanders and a legal basis on which to invalidate them. Instead, it appears the case will only muddy the waters even more.
After both oral arguments, one thing thing seems clear: A majority of the U.S. Supreme Court dislikes partisan gerrymandering. But what should they do about it? Justice Sonia Sotomayor seems ready to go whole hog and strike down political redistricting altogether. Justice Stephen Breyer wants to wheel out a blackboard and confab about the social science behind it. Justice Anthony Kennedy wants to keep asking the same question until he gets an answer he likes, then turn that into the law of the land. Judging! How does it work?
Although Benisek is, like Gill, a constitutional challenge to political redistricting, it differs in a few key respects. Most obviously, the plaintiffs here are Republicans, arguing that Maryland Democrats violated their rights in drawing the state’s 6th Congressional District to favor the Democratic Party. The plaintiffs in Gill were Democrats challenging a Republican gerrymander of the state legislature. In theory, that role reversal shouldn’t matter. In practice, it contributes to a narrative that plaintiffs in both cases want to advance. Both parties gerrymander when it suits them, they argue, so the federal judiciary has a duty to step in and play neutral referee.
Another difference: In Gill, the Democratic plaintiffs are challenging the entire state assembly map, arguing that it entrenches Republican power in violation of both equal protection and free speech principles. The challenge in Benisek is also much narrower. Republican voters in Maryland’s 6th District argue that Democratic mapmakers retaliated against them for their political association by diluting the power of their vote. They’re asking the court to strike down the 6th District alone, exclusively on First Amendment grounds.
The justices have had nearly six months to decide Gill. If they’d settled on an answer behind the scenes, they could’ve used arguments in Benisek to help refine their nascent gerrymandering jurisprudence. But after Wednesday, it’s pretty apparent that the justices still have no idea how they’re going to tackle these cases. Even Breyer, a known chaos muppet who typically thrives in a free-for-all, seemed exasperated.
As usual, the problem largely comes down to Kennedy. In 2004’s Vieth v. Jubelirer, the perennial swing justice wrote an opinion concluding that partisan gerrymandering probably violates the First Amendment by “penalizing citizens” because of “their association with a political party” and “their expression of political views.” That sounds about right, but it didn’t arm the court with a weapon with which to slay political redistricting. The justices still need a way to gauge the severity of a partisan gerrymander—to determine when a redistricting effort imposes such a huge burden on voters’ rights that it cannot possibly comport with the Constitution.
In Gill, the plaintiffs proposed a formula—using enough math to scare Chief Justice John Roberts—to measure gerrymanders. The Benisek plaintiffs put forth a simpler rationale: They point out that, under long-standing First Amendment precedent, public officials may not retaliate against citizens on the basis of their expression. This principle, they argue, should apply to gerrymandering as well. Their reasoning is simple: When mapmakers draw district lines with the “specific intent” to dilute votes for the minority party, they have retaliated against supporters of that party because of their political association. Thus, any district drawn to substantially dilute votes for a certain party infringes upon the First Amendment and must be invalidated.
Arguing for the plaintiffs on Wednesday, Michael Kimberly made this theory sound enticingly simple.
Sotomayor asked Kimberly if he saw “other tests being a possibility.” Kimberly said, “Sure,” but that those approaches might not be “an apt way of thinking about what happened in Maryland,” where the evidence of the partisan intent of the gerrymander was ample. Breyer pointed out that all the tests “have slight variations on different themes” and asked Kimberly how he’d feel if the court consolidated its gerrymandering cases and then heard them all at once—in a monster hearing that would involve experts sparring over methodology in front of a blackboard. Kimberly was visibly unenthusiastic about this prospect, gently informing Breyer that, no, he was not all that crazy about this cockamamie scheme.
Then Justice Elena Kagan poked a hole in Kimberly’s theory that quickly deflated his argument. What if, she posited, mapmakers shifted “the bluest blue voters” into “a solid Republican district”—not to make it a safe Democratic district, but to make it more competitive? “That could, indeed, be a violation of our theory,” Kimberly responded. If that’s true, then the theory is fatally flawed: Partisan gerrymanders represent a potential constitutional ill because they prevent competitive elections, thereby undermining basic democratic values. If a state can’t draw competitive districts without unlawfully “retaliating” against voters, then maybe the retaliation theory isn’t the panacea Kimberly made it out to be. The legality of a new map would come down to how it altered the old map rather than an actual intent to dilute voting power.
Justice Samuel Alito, who think courts should stay far away from political redistricting, glommed onto this problem straightaway. “Your legal theory—I probably don’t understand it,” he told Kimberly. “But, if I understand it, I really don’t see how any legislature will ever be able to redistrict.” Justice Neil Gorsuch hopped in to ding Kimberly for failing to conduct “statistical sampling” that could prove the district stayed in Democratic hands because of gerrymandering. Maybe, he mused, “people just preferred the candidate.”
By the time Maryland Solicitor General Steven Sullivan swaggered up to the lectern, he seemed to think he had this case in the bag. Not quite. Kennedy promptly asked Sullivan a question that’s virtually identical to one he posed in Gill, and raised in his Vieth opinion: “Suppose the Maryland Constitution had a provision that required that partisan advantage for one party be the predominant consideration in any districting. Lawful or not?” After some wrangling, Sullivan answered, “Yes,” the statute would be unlawful because it’d require “viewpoint discrimination.”
“How is this case different?” Kennedy asked. Sullivan suggested that it differs because the legislature didn’t pass a law discriminating against Republican voters; it just drew maps behind closed doors that discriminated against them. “So if you hide the evidence of what you’re doing, then you’re going to prevail?” Kennedy responded.
Even Chief Justice John Roberts, who had previously appeared skeptical that the courts can resolve gerrymanders, got in on the fun. “Let’s talk about boundary lines for a second,” he told Sullivan. “Part of the issue here is, you have people from Potomac joined with people from the far west panhandle. I mean, they both have farms, but the former are hobby farms and the others are real farms.” Roberts’ dig at hipster farmers is definitely the best joke of the day, but it’s also confusing, because nobody expected his vote to be in play. Could the chief justice—a Maryland resident—finally see how warped districts hurt democracy, thanks in part to the urban chicken coop?
It seems unlikely, yet it’s also impossible to figure out where the court will land on this issue. Only Sotomayor looked ready to accept the retaliation theory, and even she had reservations. Everyone else appeared to be scouring the briefs for some standard that makes consistently good sense. In other words, we’re right back where we started. Kagan and Breyer are still trying to nab Kennedy’s vote, but Kennedy is still cogitating, and no one can count five votes for any single theory. Benisek made just one thing clear: The future of partisan gerrymandering is in the hands of nine justices who aren’t even sure if they know it when they see it.
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