Iris Aikaterini Frangou | Columbia University
The Supreme Court has been notoriously averse in addressing the constitutionality of partisan gerrymandering. Now, for the first time in 13 years, the justices have agreed to take on, not one, but two major challenges to gerrymandering during their present term, prompting speculation that the Supreme Court is finally ready to set a standard for partisan redistricting. If such gauging holds true, the way American elections are conducted could very well be revamped. Were it to prove false, it is hard to see another opportunity for the Supreme Court to rein in gerrymandering in the near future; at age 81, Justice Anthony M. Kennedy, the swing vote in the Supreme Court, is perilously nearing retirement- an event that, if realized during Mr. Trump’s tenure in office, would seal the Court’s conservative proclivity and dash any hopes of lasting, legislative change.
Partisan gerrymandering, the act of crafting legislative and congressional district lines to bolster the power of an incumbent political party, is typically practiced by either “packing” a state’s majority Democrats into a smaller number of districts or by “cracking” concentrations of Republicans and thereby rendering them minority voters in each district. While the Supreme Court periodically nullifies redistricting plans because of racial or ethnic gerrymandering, it has never done so on the basis of partisan gerrymandering, and political parties pride themselves in their ability to draw state lines.
The question of constitutionality with regards to extreme partisan gerrymandering was revitalized on October 3rd, when the court accepted a redistricting challenge from Wisconsin. In the case thenceforth known as Gill v Whitford, Wisconsin Democrats accused Republicans of having redrawn the state’s entire legislative map to maximize their party’s ability to secure seats in the state legislature during the next few election cycles. The justices had yet to resolve the issue, when the Supreme Court took on a second major challenge on December 8th, this time hailing from Republicans in Maryland. In Benisek v Lamon, the state’s majority party was similarly blamed for redrawing boundaries in view of data from the 2010 census.
The reason for which the Benisek case was accepted, following its initial rejection, remains unclear, and has garnered considerable intrigue. Not only are the two cases different in scope, but each also raises a different constitutional issue; Gill undertakes the state’s entire legislative map on Fourteenth Amendment equal-protection grounds while Benisek focuses on a single congressional district under alleged violation of the First Amendment.
Amongst the plethora of plausible explanations, two seem most compelling. First, the justices may have accepted Benisek because it allows for a narrower justification with which to tackle gerrymandering and thereby, reduces the likelihood of it being reversed by a conservative majority in the event of Justice Kennedy’s retirement. Benisek questions whether partisan gerrymandering punishes voters for their support of a party’s candidates; if such an accusation is found to be accurate, an anti-gerrymandering ruling based on the violation of the First Amendment is more likely to withstand the passage of time (and a more conservative bench). Were Justice Kennedy’s prior statements to serve as an indication of his disposition, it is not hard to understand why he is considered likely to cast the pivotal vote. Back in 2004, the last time the court endeavored to set a standard for gerrymandering, Justice Kennedy said that citizens are protected by the First Amendment against retaliation for their past support of a political party. He wrote that, “if a court were to find that a state did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation” thereby signaling his unwillingness to close the door to anti-gerrymandering claims.
On his part, Chief Justice John Roberts seems to be more interested in preventing the Supreme Court’s perception as politically “partisan.” Perhaps the most direct expression of such concern was conveyed in the Gill hearing when the chief justice cautioned against the “intelligent man in the street” thinking that the Supreme Court is siding with either the Democratic or the Republican party. The issue of partisanship with regards to the Supreme Court predates both Gill and Benisek, and is inextricably linked to the development of several statistical theories as a determinant for gerrymandering cases. Most prominently, King and Browning’s “partisan symmetry” of 1987 suggests that districts should be drawn in such a way, so that parties would attain the same electoral outcomes given the same number of votes. Statisticians and political science academics have long been attempting to convince the justices that statistical tools can be used to set a standard for gerrymandering without inviting political bias. The justices, however remain apprehensive. The chief justice’s detestation for gerrymandering cases is, after all, not a secret; in October, he contemptuously referred to the basis for courts’ reapportionment rulings as “sociological gobbledygook.” In that respect, accepting a gerrymandering challenge by Wisconsin Democrats and a second one by Maryland Republicans, will inhibit the court’s rulings from appearing politically biased.
The reason for the justices’ agreement to consider Benisek invites speculation; so does the view that Justice Kennedy may be inclined to set a standard for partisan gerrymandering so as to bequeath a legacy to American democracy before he retires. What does not, is Mr. Trump’s resolve to appoint orthodox conservative judges, many of whom have ties to the Federalist Society (the US’ premiere organization of conservative and libertarian lawyers) and several amongst whom have already been approved by the Republican-dominated Senate. With federal judges serving for life, Mr. Trump’s impact on American law may long outlive his administration. What this implies for gerrymandering, is that this term likely constitutes the “use-it-or-lose-it moment” to tackle partisan redistricting, as law expert Richard Hasen has wittily observed. As the American public awaits the Supreme Court’s rulings in early June, the stakes are growing ever higher.