On Tuesday morning, the Supreme Court will hear oral arguments in the case that will decide whether and when partisan gerrymandering violates the Constitution. In terms of contemporary politics, what’s at stake in Gill v. Whitford is Republicans’ ability to use the redistricting process to continue their dominance over the United States House of Representatives and numerous state legislatures. While Democrats have flagrantly abused the redistricting process in the past, and continue to do so in some of the very few states where they are now in power, the GOP controls both the state legislature and the governor’s office in 25 states while Democrats hold similar control in only six states. As has been the situation in numerous blockbuster cases in the last decade, a single justice, Anthony Kennedy, will decide whether to overturn the status quo. (Disclosure: One of the authors of this piece, Perry Grossman, is also one of the authors of an amicus brief filed on behalf of those seeking to toss out the Wisconsin redistricting plan.)
The court last looked at partisan gerrymandering 13 years ago in Vieth v. Jubelirer, a case challenging a map that gave (and continues to give) Republicans an overwhelming advantage in electing the congressional delegation in Pennsylvania. That case was resolved with a highly unusual and really rather on-the-nose 4–1–4 voting configuration, placing Kennedy between the court’s liberal and conservative wings. The Supreme Court’s four conservatives all agreed that “an excessive injection of politics” in redistricting is “unlawful” but said the federal courts should stay out of this “political thicket” because there was no principled way to determine how much partisan favoritism is too much. The four liberals, meanwhile, agreed excessive partisanship was unlawful but said federal courts can and should intervene when legislatures use the redistricting process for political gain. As if to highlight the conservatives’ critique about the difficulty of finding a manageable standard, the court’s four liberal members authored three separate opinions, each positing its own standard.
And then there was Kennedy, whose separate opinion in Vieth sets the stage for Gill.
In Vieth, Kennedy provided the fifth vote to toss aside the challenge to the Pennsylvania map but refused the conservative bloc’s invitation to close the door on partisan gerrymandering claims altogether. Instead, Kennedy provided some guidance on what a successful challenge might look like.
First, Kennedy suggested that partisan gerrymandering is unconstitutional because it runs afoul of the First Amendment, not because it violates the Equal Protection Clause (which had been the primary argument in Vieth). That’s an important distinction. The Equal Protection Clause cares very much about whether a law discriminates on the basis of protected characteristics like race, religion, national origin, and sex. The Equal Protection Clause doesn’t care nearly as much about whether a law discriminates on the basis of political affiliation. As Mark Joseph Stern explained in June, the First Amendment does center on whether the government favors or punishes a particular viewpoint. And Kennedy cares deeply about the First Amendment.
Second, Kennedy asked plaintiffs to propose a standard that didn’t ask the federal courts to guarantee that a political party would win a number of seats proportional to the number of votes they received. The Vieth concurrence and one subsequent opinion offered vague contours of a potentially workable standard: (1) It can’t be so squishy that courts will be inundated with weak but non-\frivolous partisan-based redistricting challenges; and (2) it can’t seek to enforce political proportionality; but (3) it should take into account those instances when a redistricting process yields electoral results that are grossly disproportionate when compared to the partisan composition of the state’s voters.
Fast-forward six years to 2010, when Democrats suffered colossal electoral defeats in state legislative races. In Wisconsin, Republicans took control of the redistricting process, drawing a map that would lock in their majority for the next 10 years. They hired redistricting consultants and used sophisticated software to draw a variety of maps that packed some Democratic voters into deep blue districts and separated other groups of Democrats into districts where they wouldn’t hurt Republican candidates. They then tested those maps under a variety of conditions, as their redistricting consultant explained: “What if the Democrats have a good year? What if the Republicans have a good year? How does it shift?” One presentation to the Republican caucus in the Wisconsin State Senate made the intent of the process absolutely clear: “The maps we pass will determine who’s here 10 years from now.”
The map the Wisconsin GOP pushed through performed even better than its drafters intended, with Republicans winning enormous gains in the state legislature even as the statewide vote remained closely decided. As Time noted, “In 2012, Republicans won 60 of the 99 seats in the Wisconsin Assembly despite winning only 48.6 percent of the two-party state-wide vote; in 2014, they won 63 seats with only 52 percent of the state-wide vote. These results are way off from what we’d expect given the history of Wisconsin’s elections.”
In 2015, a group of Democratic voters in Wisconsin challenged the Republicans’ cartographic handiwork. The following year, a federal court invalidated the redistricting plan as an unconstitutional partisan gerrymander, the first time a court had made such a ruling. The opinion—written by Judge Kenneth Ripple, a well-respected Reagan appointee, in a 2–1 decision—hewed closely to Justice Kennedy’s guidance from Vieth, providing a comprehensive history of the Supreme Court’s 50-year flirtation with partisan gerrymandering and offering a First Amendment rationale for the decision to invalidate Wisconsin’s map.
The Ripple ruling also offers a judicially manageable standard for evaluating when the politics of a redistricting plan give rise to an unconstitutional partisan gerrymander—that is, when it creates a map that will not merely favor one political party, but will entrench it in power. The “entrenchment” standard is meaningfully different from the proportionality standard at issue in Vieth. While the proportionality standard looks more at whether one party won “enough” seats, the entrenchment standard focuses on whether a legislature has used a redistricting plan to prevent voters from holding elected officials accountable at the ballot box. To put it another way, the entrenchment standard captures a distinct harm to democracy itself, not just to the fortunes of a particular political party. It recognizes the danger to republican self-government that results when a legislative majority uses redistricting to ensure that its preferred political party will stay in power even when that party is opposed by a motivated electorate.
The record plaintiffs built at trial contains a mountain of evidence showing the Wisconsin legislature drew the challenged map with the express intent to entrench the Republican Party in power. It also features numerous expert analyses showing the map would yield a Republican majority under almost any realistic election scenario. Together, these factors combine to make Gill an extremely promising case for those seeking to end the practice of partisan gerrymandering.
It may also be the last chance—for a while, at least. In the years since Vieth, five seats on the court have turned over but the voting configuration around Kennedy remains the same. Kennedy is 81 years old, and rumors of his retirement have been circulating furiously. If he retires while a Republican is president, his successor will be appointed from the same pool of Federalist Society acolytes that yielded Neil Gorsuch—who is already on record as believing the courts should stay out of partisan gerrymandering.
Well-informed court-watchers have vacillated on how Kennedy is likely to rule in this case. Reading the Kennedy tea leaves is always a challenge, and his performance at oral argument will present more fodder for prognostication. Looking back on his words in Vieth, while he might not have been satisfied with the case that was presented to him then, he did not equivocate in his conviction that partisan gerrymandering was a pernicious practice. In that opinion, Kennedy quoted a North Carolina state senator: “Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment: ‘We are in the business of rigging elections.’ ” He then concluded with his request for plaintiffs to give him a clearer sense of when and why the federal courts should intervene in this fraught area of state politics. Thirteen years later, we’ll find out if he got what he was looking for.