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Justice Kavanaugh’s Surprising Oral Argument Questions in Partisan Gerrymandering Cases

The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional. Before argument court watchers were focused on Chief Justice Roberts, but during argument Justice Kavanaugh stole the show.

In 1986 in Davis v. Bandemer six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination.

Most recently, last term, with Justice Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. The two cases before the Court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively. By almost any measure the gerrymanders were unapologetic and extreme.

Now that the Court has five solidly conservative members many have speculated that these Justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question.

In oral argument last term Chief Justice Roberts, now the Court’s likely swing Justice, used the term “sociological gobbledygook” when expressing his skepticism about the Court being able to agree to a satisfactory test. Today, as is typical, the Chief asked questions of both side. For example, he questioned the merits of a test that assumes how people will vote based on past voting noting how often predictions of how people will vote are wrong. On the other hand, he acknowledged that the Maryland gerrymander “seems to be retaliation” and noted that the Supreme Court has an “established analysis” to deal with First Amendment retaliation claims. Continue reading

 

Supreme Court Hears Oral Argument in Maryland Partisan Gerrymandering Case

The challengers to the redistricting of Maryland’s Sixth Congressional District just might win—if the Supreme Court actually decides their case.

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

Following the redistricting, Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that, Republican Larry Hogan won the Sixth District, beating his rival by 14 percent.

A number of Sixth District Republicans sued alleging the state legislature “targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine.”

In 2016, a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment. But two of the judges weren’t convinced that the challengers were able to demonstrate that but-for the partisan gerrymander, Republicans would have won and continued winning in the Sixth District. Continue reading

 

Supreme Court to Consider Constitutionality of Partisan Gerrymandering

In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional.

While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional. In 2004, Justice Anthony M. Kennedy – who may be the deciding vote in Whitford – wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional.

In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans.

The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process. Drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers, the standard is based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap. Continue reading