With gerrymandering, Supreme Court hangs on Justice Kennedy’s words

The Supreme Court’s 9-0 nondecision in Gill v. Whitford was more than a little anticlimactic. The Court had been asked to decide if extreme partisan gerrymandering can be challenged in federal court and if so, what standard should apply. (Extreme partisan gerrymandering allows a party to maintain disproportionate control of a state’s legislature or congressional delegation even if the majority of the state’s voters cast their ballots for candidates of the other party.)

The Court decided neither question, ruling unanimously that the plaintiffs — Democrats in Wisconsin challenging the legislative map Republicans put in place after the 2010 census — lacked standing.

{mosads}The Court, in an opinion by Chief Justice Roberts, made two basic points. First, it characterized the plaintiffs’ claim as a complaint that the way the districts were drawn “diluted” their votes, making them less effective than the votes of other voters, in violation of the Equal Protection Clause. Second, it said that the plaintiffs failed to show that they had actually suffered that kind of injury, and it remanded the case to allow them to attempt to do so. (Justices Thomas and Gorsuch would have simply ordered the case dismissed.)

Despite the failure of the Court as a whole to reach the underlying questions, however, there are four justices who clearly think that extreme partisan gerrymandering can be challenged in, and remedied by, a court.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, wrote a concurrence in which she described the kind of evidence the plaintiffs could submit on remand to establish standing. She also fleshed out an entirely different theory from the dilution claim, based on the First Amendment and potential plaintiffs’ ability to organize and freely associate, and explained how these or other plaintiffs might establish standing for that claim too. The chief justice’s opinion explicitly declined to express a view on this theory.

Justice Kennedy, who did not join Kagan’s opinion, suggested in the 2004 case of Vieth v. Jubilirer that the First Amendment theory might support gerrymandering challenges like the one at issue in Gill. Not surprisingly, Justice Kagan relied heavily on this opinion. After all, quoting Justice Kennedy is what everyone — justices and advocates alike — does when they want to woo him. And Justice Kennedy’s ultimate view on whether and how gerrymandering can be challenged remains a mystery.

The chief justice quoted Kennedy as well, when rejecting the argument that the Court must take up extreme partisan gerrymandering because it is “the only institution in the United States that can … solve this problem.” Quoting Justice Kennedy’s concurring opinion in Clinton v. City of New York, the chief justice wrote: “Failure of political will does not justify unconstitutional remedies.”

But this quote is taken completely out of context. In Clinton, the Court struck down the Line Item Veto Act (LIVA). The lack of political will Justice Kennedy was referring to involved the challenge of controlling government spending, and the unconstitutional “remedy” was LIVA itself. In explaining why he believed LIVA was unconstitutional, Kennedy emphasized the role that the separation of powers plays in protecting individual rights. Specifically, he argued, LIVA “establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress.”

In other words, Kennedy said that this targeting ability was corrosive of the Constitution’s structure and protections. And it was important that the Court police those lines.

Such concerns also support the Gill plaintiffs’ challenge to extreme partisan gerrymandering. Again, the lawsuit involves a statute — the redistricting map. And although the constitutional claims in gerrymandering cases are different from those at issue in Clinton, the concern about protecting groups from being inappropriately targeted is eerily similar. As with LIVA, partisan gerrymandering politically disadvantages a disfavored group of people, denying them the ordinary lines of political redress and influence.

Furthermore, the lack of political will has little to do with the problem of gerrymandering. Extreme partisan gerrymandering renders political will irrelevant, or at least impotent, replacing it instead with self-perpetuating, entrenched power.

In Clinton, Kennedy insisted that Congress must make difficult political decisions instead of punting them to the president. But extreme gerrymandering reduces legislators’ incentive and ability to make such difficult political decisions — particularly bipartisan ones. In gerrymandered districts, for example, elected officials are often more worried about primary challenges than about winning in the general election and are thus more likely to take relatively extreme positions than to take centrist, bipartisan ones.

Some might ask how much all this really matters. When given the opportunity, both Democrats and Republicans have engaged in partisan gerrymandering. But as redistricting technology continues to become more precise, the party that controls the redistricting body — which in most states is the legislature — can keep itself in power by redrawing the maps in its favor after each census. Republicans now have the upper hand, largely due to a strategy of taking state houses in 2010 specifically so that they would control redistricting after the census that year.

JUST IN: McConnell cancels Senate’s August recess, preventing Democrats from campaigning for midterms https://t.co/fMvJgkHoyE pic.twitter.com/f7l98u5MTA

— The Hill (@thehill) June 5, 2018

In states like Wisconsin, North Carolina, and Virginia, Republican control of the redistricting process maintains a significant skew between the statewide vote and the partisan control of the legislature and/or congressional delegation.

That skew can have corrosive effects on our democratic institutions. A House of Representatives controlled by partisan delegations that do not enjoy majority support in their home states cannot serve the purpose the Framers envisioned; it is likely to be much less responsive to the interests and preferences of the People than is a more representative body. And state legislatures also can impact our national institutions. State legislatures could call for and ratify constitutional amendments — or maybe even an entirely new constitution — that in no way reflect the overwhelming popular support such fundamental changes should enjoy.

Chief Justice Roberts was thus wrong to deem irrelevant the Court’s unique ability to protect our democracy. Extreme partisan gerrymandering turns democracy into a zero-sum game that undermines political compromise and accountability. Just as the Court in Clinton preserved not only the form, but also the democratic purpose, of the roles the Constitution assigns to Congress and the president, so too should the Court protect the structures necessary for a functioning republican democracy. We’ll know whether it will within the next couple of years.

Carolyn Shapiro is an associate professor of law at IIT Chicago-Kent College of Law, the founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and director of the Public Interest Certificate Program. Shapiro is a former Illinois Solicitor General and is one of the 18 constitutional law professors on an amicus brief in support of the respondent in Gill v. Whitford.