If Anthony Kennedy follows precedent, he’ll strike down partisan gerrymandering.

If Anthony Kennedy Follows Precedent, He’ll Strike Down Partisan Gerrymandering

If Anthony Kennedy Follows Precedent, He’ll Strike Down Partisan Gerrymandering

The law, lawyers, and the court.
Sept. 19 2017 1:43 PM

Time to Protect Our Democracy

Anthony Kennedy should follow Byron White’s guidance and strike down partisan gerrymandering.

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Justices Anthony Kennedy and Byron White in October 1991.

AFP/Getty Images

Next month, the Supreme Court will hear oral argument in the partisan gerrymandering case Gill v. Whitford. In Gill, the state of Wisconsin will argue that partisan gerrymandering is not “justiciable”—that this type of districting decision is not subject to judicial oversight. The court held more than 30 years ago in Davis v. Bandemer, however, that partisan gerrymandering challenges are, in fact, justiciable. That opinion, which I worked on as a clerk for Justice Byron White, provides crucial insight into the court’s choices in this case, which has the potential to revolutionize our political system. If the court follows the precedent and logic of Justice White, it will recognize that the time has come to rein in partisan gerrymandering, which has run amok in the years since the court issued its Davis opinion.

Back in 1986, Davis put the Supreme Court in a difficult position. On the one hand, judges respect the prerogatives of the political branches of government. On the other hand, the court had previously held that reapportionment cases and cases involving gerrymanders based on race were justiciable, and logic did not readily distinguish partisan gerrymandering.

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In Davis, a solid majority of six justices voted for justiciability, which rendered partisan gerrymandering a legal as well as a political question. There was less clarity as to what level of partisan gerrymandering might rise to the level of unconstitutionality, with the court ultimately overturning a district ruling that had struck down the Indiana redistricting scheme in question.

The insights that I recall gleaning from Justice White’s comments during the drafting of his opinion highlight the complexity of determining whether legislative districts can be said to achieve fair—or unfair—representation. One insight was simply that, unlike race, people’s political affiliations change over time. Another was that under our political system a court should presume, absent evidence to the contrary, that an elected official in fact represents all of his or her constituents no matter what their party.

Finally, a critical insight was that there was tension between equal protection at the individual-district scale and at the party-state scale. Justice White walked me through the scenario of a state having 100 percent competitive districts. In that situation even a slight shift in the overall electorate from one election year to the next could lead in theory to radical swings that might result in one-party control of a delegation in a given state. In this view, a certain amount of gerrymandering might be considered essential to ensuring roughly proportional partisan representation.

Carefully navigating a path among these markers, the language that eventually made its way into Justice White’s opinion asserts: “[A] group’s electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause.”

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So what characteristics of partisan gerrymandering do constitute such impermissible discrimination? 

Here’s what Justice White wrote: “[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political system as a whole.”

In Davis, a plurality of four justices signed on to this standard and to the conclusion that the plaintiffs had not met it. Two more justices, in a strongly worded dissent written by Justice Lewis Powell, argued that a constitutional violation had occurred in Indiana. This left Justice White’s “consistent degredation” touchstone as the crucial portion of the Davis precedent over the years.

When the court returned to partisan gerrymandering in the 2004 decision Vieth v. Jubelirer, a new plurality of four justices led by Justice Antonin Scalia stormed dismissively that “no judicially discernible and manageable standards for adjudicating partisan gerrymandering claims have emerged [in the years since Davis v. Bandemer].” Without such standards, Scalia wrote, “we must conclude that partisan gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.”

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But Justice Anthony Kennedy was not so quick. With Davis having opened the judicial door, he declined to provide the fifth vote for closing it. Looking ahead, Kennedy wrote, “[t]hat no … standard has emerged in this case should not be taken to prove that none will emerge in the future.” Wouldn’t it be unfortunate, Justice Kennedy wondered, for the court to act so hastily if indeed “suitable standards … did emerge”? Oh and by the way, might not the First Amendment have something to say about this kind of claim? It is unclear why, having voted to keep the judicial door open more than a decade ago, Kennedy would now vote to close that same door.

In considering what role the Davis precedent ought to play now, it’s worth noting that Justice White was a small-d democrat (in addition to being a Democrat). As another former White clerk observed on the occasion of his retirement from the court, Justice White had “confidence in the good faith and capabilities of democratic institutions.” In such a view, “government power is limited by the very forces that legitimate it: the people acting through fair and free elections, and a Constitution that both authorizes and specifically checks government actors.” His belief in democracy, though, did not translate into laissez-faire deference, especially to state political actors.

The story about Davis that Scalia attempted to spin in Vieth was this: Because a clear standard for adjudicating a partisan gerrymandering claim hadn’t yet emerged, justiciability was obviously foolish and the court should withdraw what was essentially a chimera of judicial review.

Here’s a different story:

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In 1986, Davis provided an early warning signal to the court that state legislatures were moving toward new, highly sophisticated partisan gerrymandering using methods with an unprecedented level of effectiveness.

While the court saw that justiciability in Davis flowed logically from the prior wave of redistricting cases, the district court in that case had relied on outdated measures of districting distortion—compactness, following jurisdictional lines, and more—which had been rendered less germane by the one-person, one-vote requirement. There had not yet been multiple lower court rulings, which might provide the court important perspective about a potential pattern of degradation of fair representation. It wasn’t clear from the Davis record how much the gerrymander in Indiana was a relative flash in the pan. As Justice White was at pains to tell me, there is a fair amount of “give” in redistricting.

Davis served as a placeholder for the court to enter the institutional conversation about the parameters for redistricting if and when partisan gerrymandering itself—and also analysis of partisan gerrymandering—evolved to the level of entrenched partisan dominance. If none of this ever came to pass, Davis would languish from disuse. If, however, that consistent degradation did emerge, the court would be poised to participate in an essential conversation about one of the most fundamental attributes of our democracy. That is where we are now.

Although Davis was an equal protection case, Justice Kennedy’s suggestion about the First Amendment in Vieth recognizes, as I have written previously, that “the fundamental issue presented by partisan gerrymandering … is voice, [which] is about meaningful conversation and power.” But the standard for unconstitutionality articulated by the Davis plurality actually resonates most with the Guarantee Clause of Section IV of the Constitution, which assigns to the United States the responsibility “to guarantee to every State in this Union a Republican Form of Government.” The essence of a republican form of government is the reflection of the people’s perspectives in their government, and “consistently degrad[ing] a voter’s or a group of voters’ influence on the political process as a whole” interferes with that essence.

The court in Gill now faces precisely the kind of entrenched political distortion that Justice White saw on the horizon and that he took care to ensure was within the court’s power to curtail. Though the arguments in Gill center on equal protection and political voice, what is at stake in Wisconsin, as in much of the country, is the fundamental character of our government. The Davis court laid the foundation for judicial control of partisan gerrymandering run riot. The Vieth court wrung its hands. With Gill, the time has come for the court to fulfill its responsibility to protect small-d democracy, as well as small-r republicanism.

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Palma Joy Strand is a professor of law in the department of interdisciplinary studies at Creighton University.