Written by Jonathan Byron
Gill v. Whitford (argued Oct. 3, 2017), a case concerning the constitutionality of Wisconsin’s state assembly district map, is one of the highest profile Supreme Court cases of this term. The Court’s decision may have a dramatic impact on national politics. Justice Anthony Kennedy stands at the center of the case, as he will likely be the swing vote on a Court otherwise split along partisan lines.
Gill will require the Court to revisit its decision in Vieth v. Jubelirer (2004). In Vieth, one of the last cases before the Court concerning partisan gerrymandering, Justice Kennedy’s vote also played a critical role. Although he concurred in the judgment that the Court could not invalidate the districting scheme in question, Kennedy did not agree with the controlling opinion by the late Justice Scalia. Instead, Kennedy wrote a concurrence that explicitly left open the possibility that the Court might someday find a judicially enforceable standard it could use to determine whether a given partisan redistricting scheme was unconstitutional. Vieth resulted in a 4–1–4 split that set the stage for the arguments in Gill thirteen years later.
An examination of Kennedy’s concurrence in Vieth and his questioning during oral argument in Gill provides insight into what he may require in a test for political gerrymandering and how he may vote. In Vieth, Kennedy rejected Scalia’s argument that partisan redistricting cannot compromise First Amendment rights. Kennedy argued that, although showing that partisan concerns were a factor in gerrymandering is not sufficient to prove a constitutional violation, such redistricting could unjustly burden an individual’s representational rights if the extent of the gerrymandering did not serve a legitimate government purpose.
However, even if the Court determined a violation occurred, Kennedy noted that this would mean nothing if it could not adopt a test based on “comprehensive and neutral principles for drawing electoral boundaries.” Without such a test, the courts risked improper judicial intervention and inconsistent outcomes. Kennedy noted that although a test that solved these issues might one day exist, the test proposed by the plaintiffs in Vieth—that the percentage of votes cast for a party should align with the percentage of seats won—was based on no authority and left courts with no obvious way to measure the burden on representational rights, given that partisanship is a legitimate standard upon which a state could base an electoral map.
Is the standard, termed the “efficiency gap,” that the plaintiffs advocate in Gill the test that Kennedy is looking for? In Vieth, Kennedy rejected a test that measured purely partisan asymmetry, but the new test is less rigid, and its proponents argue that it more specifically targets invidious attempts by majority parties to secure indefinite control of state legislatures and congressional seats. The efficiency gap, developed by two University of Chicago professors, is a measure of the difference in a state-wide election of “wasted votes” between parties. Wasted votes are defined as the number of votes not cast for a winning candidate. The test is arguably a useful metric because the purpose of gerrymandering is to maximize the amount of wasted votes for the opposing party.
At oral argument in Gill v. Whitford, Kennedy’s questioning was seemingly not concerned with the plaintiff’s standard. He addressed questions only to the appellants, who defended the gerrymander, and asked whether a hypothetical state law that explicitly required the government to draw a map favoring one party over another was lawful, and if not, on what grounds. He also asked the Wisconsin Solicitor General whether conceptualizing the harm as a First Amendment violation would address the appellant’s arguments that the plaintiffs did not have standing. These questions seem to indicate that Kennedy may be looking for a way around basing the constitutional violation on a suspect classification, as racial gerrymandering cases do. Kennedy may instead seek to frame the issue as a burden on representational rights.
Interestingly, Kennedy was silent on the matter of a justiciable standard, even as other Justices bombarded Paul Smith with inquiries about the reliability and administrablilty of the efficiency gap. The silence may suggest that Kennedy is content that the plaintiffs’ social science based model is sufficiently fair and neutral.
However, those hoping for a sweeping repudiation of the political districting schemes that have proliferated throughout the country may need to temper their hopes. At oral argument, the plaintiffs acknowledged that the standard should likely only apply to the most egregious partisan redistricting. Given this high bar, Kennedy may be satisfied that the test is acceptable because it can eliminate the worst cases of redistricting without going too far.
Thus, even if Kennedy joins a majority that votes down the map, the precedent set may only prevent gerrymandering from becoming an increasingly more difficult barrier for minority parties to overcome. Another possibility is a similar result to Vieth, as Kennedy could vote against Wisconsin’s scheme but refuse to sign his name to an opinion that gives courts too much power to invalidate partisan maps, resulting in a plurality opinion and leaving the larger issue of political gerrymandering unsettled.
Whatever the outcome, it seems that Kennedy believes partisan gerrymandering implicates the First Amendment in ways that the apportionment cases and their predecessors do not. Kennedy also seems to accept the efficiency gap test, and the courts might soon have the long sought after standard for halting the tide of political gerrymandering. With these clues in mind, it is likely that the Wisconsin map at issue in Gill will not survive; however, how far the Court will wade into the rising political waters rests on Justice Kennedy and the four other Justices who agree with him.