WASHINGTON ― Justice Anthony Kennedy, the key swing vote in a landmark redistricting case before the Supreme Court, did not ask a single question of lawyers challenging maps for the Wisconsin state assembly, but did ask lawyers for the state to clarify whether an electoral map could ever be so egregiously partisan that it could violate the First or 14th amendments.
Kennedy’s silence during the challengers’ comments could indicate he is leaning toward siding with the court’s four liberal justices in striking down the maps for the Wisconsin state assembly, but it’s still uncertain which way he will ultimately vote.
During oral arguments Tuesday for the case, Gill v. Whitford, three of the court’s more conservative justices, John Roberts, Samuel Alito and Neil Gorsuch, seemed skeptical there could be a workable standard for courts to determine whether a partisan gerrymander violated the Constitution. The court’s more liberal justices, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer, seemed more optimistic a manageable standard existed.
Lawyers representing Wisconsin argued the court would be taking an unprecedented step into politics by stepping in to strike down Wisconsin’s electoral maps, and would “spark a redistricting revolution on these social science metrics.” In fact, they argued, the 12 plaintiffs lacked standing to challenge all of the state’s maps and could only challenge the districts they lived in.
Kennedy interrupted Misha Tseytlin, Wisconsin’s solicitor general, to ask whether that argument still applied if the challengers in Wisconsin had suffered a First Amendment violation. An electoral map drawn by one party in control of the state legislature could violate the First Amendment, some argue, because it amounts to a state punishment of certain voters for their political views.
Kennedy also wanted to know whether a state law that required a state to follow traditional redistricting principles but that also tried to maximize partisan advantage would be unconstitutional. When Erin Murphy, a lawyer representing the Wisconsin state senate, started talking about plaintiffs’ standing, Kennedy interrupted and asked the attorneys to assume the plaintiffs had standing, saying, “I’d like an answer to the question.”
After winning control of the state legislature in 2010, Wisconsin Republicans redrew the maps for the state assembly to their considerable benefit. In 2012, Republicans won just 48.6 percent of the statewide vote, but won 60 of 99 assembly seats.
In 2004, the Supreme Court declined to strike down Pennsylvania’s congressional map as unconstitutional after challengers said it went too far to benefit Republicans. Four of the justices in the case said courts shouldn’t be in the business of striking down electoral maps based on partisan advantage because there was no standard by which they could judge if they were constitutional. Kennedy, writing separately, said a standard hypothetically could exist.
Appealing to Kennedy, the challengers and supporters in Gill offered a variety of standards for the justices to judge the constitutionality of partisan gerrymanders. One that has gotten much attention is called the “efficiency gap,” which measures the number of votes each party wastes in an election.
But Alito, Roberts and Gorsuch were skeptical of using social science as the basis to determine whether to overrule state lawmakers. In an exchange with Paul Smith, the lawyer representing the Wisconsin challengers, Roberts said a ruling in favor of the plaintiffs would unleash a wave of redistricting challenges the court would be obligated to hear. An intelligent man who was stopped on the street, Roberts said, would be skeptical the efficiency gap, which he portrayed as a complex mathematical formula, was the reason the court was striking down maps drawn by one party. The intelligent man, Roberts said, would think the Supreme Court would favor one party over the other, something he said would do “serious harm” to the status of the court and its reputation.
Smith responded by arguing that gerrymandering posed an equally dangerous threat to democracy because it would erode confidence in the political system and discourage people from voting. “You are the only institution in the United States that can solve this problem,” he told the court. Congress, Smith said, would not fix the problem because politicians benefit from gerrymanders.
Ginsburg at one point reframed the case in an attempt to look at the larger picture and its implications for democracy. She expressed concern that someone in an extremely gerrymandered district would feel no obligation to vote.
“What’s really behind all this?” Ginsburg asked. “What becomes of the precious right to vote? ... That’s something we should be concerned about.”
Gorsuch and Alito, who at one point conceded gerrymandering was “distasteful,” pressed Smith on how exactly the court could establish a test to determine whether a redistricting plan was unconstitutional.
Breyer tried to offer a standard he said he believed could be “manageable.” He proposed a hypothetical standard that would only consider maps drawn when one party has control of state government. Under those maps, challengers would have to use a test to determine whether a map was politically asymmetrical, meaning one party would consistently win considerably more legislative seats with the same percentage of statewide votes as the other party. The state would have to produce some justification for those maps, he said.
This article originally appeared on HuffPost.