Why Justice Kennedy Is Unlikely to Overturn Wisconsin’s Maps

On Tuesday, the Supreme Court heard testimony in Gill vs. Whitford, a case stemming from Wisconsin’s 2011 redistricting maps that gave the state GOP a significant advantage for most of this decade in electoral politics.

In a nutshell, the plaintiffs, hailing from deeply liberal districts in Wisconsin, argue their 1st and 14th Amendment rights are being violated by having their votes be watered down due to redistricting’s effects.  In some sense they are right, partisan advantages always limit a voters choice in some way.  But natural effects, such as self-sorting and other factors are also at play.

The 12 plaintiffs lost before the district court only to win on appeal in a divided 2-1 ruling.  The divided Appellate Court found against the State of Wisconsin but acknowledged natural factors were at play in Wisconsin.  The state appealed to the Supreme Court.

Reliably, four conservative jurists will vote for the state’s redistricting process while four will oppose it.  The one swing vote is none other than Anthony Kennedy.  Kennedy has a history with redistricting.  In 2004, the court in Vieth ruled in favor of the state of Pennsylvania.  The four justice majority ruled in favor of Pennsylvania because there was not a standard to establish an unconstitutional partisan gerrymander. But, Justice Kennedy did not join them and instead argued he could see the court overruling a map if a workable standard was in place to do so.

The plaintiffs argue they have such a standard using computer models based on wasted votes.  Maybe it will swing Kennedy maybe it won’t.  Kennedy did come out strongly against Wisconsin in his questioning but this seemed partly attributable that no justice loves gerrymandering. Rather, it is the details of the case and the arguments of Chief Justice John Roberts that will likely swing him to join the conservative majority.

The details of the case make you wonder how the Appellate Court found the plaintiffs even had standing.  First-off, the plaintiffs are not suing on a by-district basis, but over the entire state map.  This means the plaintiffs are arguing they are not hurt directly by gerrymandering but rather their ability to enjoy a Democratic legislative majority is.

Secondly, since 1986, when a Supreme Court batch of justices even hinted at the idea a partisan map could go too far the court has never found a magical formula.  To date, that formula has eluded everybody, including non-partisan map-drawers even in Iowa (which has a solidly red GOP state government).

Lastly, and this is probably most damning to their argument, even if it is unspoken, is the plaintiffs want the courts to wade ever deeper into a political process.  By supporting the plaintiffs the court would basically be saying they decide what is and is not too political. The plaintiffs argue an “efficiency gap” (the difference between all the loser’s votes and the surplus of votes in excess of those the winner needed for victory divided by the total number of votes cast) that exceeds 7% — a figure plucked from the ether — is unconstitutional. To put this in perspective, by this metric, one-third of all legislative redistricting maps in 41 states over 43 years were impermissible partisan, including many maps drawn by non-partisan commissions (California anybody).  Plus, this is to say nothing of how badly districts will look and be contorted to mix rural, urban and suburban areas just to make them meet this standard.

In his questions Chief Justice John Roberts picked up on this line of reasoning and challenged the plaintiffs on why the court should get involved in a political matter?  While the plaintiffs had an answer it was not a good one.

Remember, on the ACA, it was reported Roberts switched his opinion because he was worried about the politicization of the Court.  That has not changed.  And while Kennedy did rule against the government he saw it as a government overreach.  This particular case involves the court not just wading into redistricting on an individual district basis, as they often do when it relates to racial gerrymanders, but entire state maps.  The court would be the jury on an inherently political process.  Even this is likely to swing Kennedy as much as he dislikes the practice of gerrymandering.

None of the arguments made by the plaintiffs or the state swung the case today.  That will come in the coming weeks when the justices discuss the cases among themselves.  Except the “court will now be deciding the most political process in the country” argument to have a lot of sway and ultimately swing Kennedy against the plaintiffs.




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