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.
Justice Kavanaugh stole the show by suggesting—repeatedly—that proportional representation could be a requirement of the Equal Protection Clause. Everyone Justice Kavanaugh asked agreed that proportional representation isn’t currently required. For this reason those defending various tests went out of their way to argue that their test doesn’t measure the deviation from proportional representation. At minimum, Justice Kavanaugh’s notion that a lack of proportional representation could violate the constitution suggests that he thinks partisan gerrymandering claims are justiciable.
The parties arguing the plans in these cases constitute unconstitutional partisan gerrymanders all offered different tests for assessing a redistricting plan’s constitutionality. Justice Breyer offered a test of his own that if one party casts the majority of votes but the other party wins two-thirds of the seats the plan is likely unconstitutional. While the other more liberal Justices seemed sympathetic to the position that partisan gerrymander claims are justiciable none explicitly embraced Justice Breyer’s test.
Unsurprisingly, the attorney defending the North Carolina redistricting plan mentioned the authority of state legislatures to redistrict in his opening. Another widely discussed theme, most prominently by Justice Gorsuch and Justice Kavanaugh, was the possibility that partisan gerrymandering can be solved by some other body—state courts or referendum, for example.
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