The Supreme Court appeared deeply divided during oral arguments Tuesday in a case that could determine the fate of partisan gerrymandering across the nation, as one attorney suggested a wrong move by the court could cause the country “to lose faith in democracy, big time.”
Paul Smith, who represents the Wisconsin voters who challenged a Republican-drawn legislative map in the case now before the court, urged the justices to step in and allow federal courts to stop partisan gerrymandering.
Otherwise, Smith said, the court runs the risk of states redrawing maps after the 2020 census that would lead to such a partisan advantage that voters could think their votes didn’t matter.
“What the court needs to know is this is the cusp of a more serious problem,” Smith told the justices. “You are the only institution in the United States who can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”
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But the court’s conservative members appeared reluctant to step into what has historically been the political process of redistricting. The liberal justices grappled for a workable standard for judges to follow when analyzing whether a state’s maps gave such an advantage to one political party over the other that it violated the Constitution.
Justice Anthony M. Kennedy, thought by many court watchers to be the deciding vote in the case, gave few clues to his thinking during the arguments. Kennedy questioned whether Wisconsin voters had a right to challenge the state’s political maps at all, but also asked other questions that made him appear open to the idea that partisan gerrymandering could violate the First Amendment.
The case comes to the Supreme Court after a three-judge panel, in a 2-1 vote, struck down Wisconsin’s map using a mechanism known as the “efficiency gap” — which expresses with a number the systematic advantage given to a political party. The case has attracted wide interest just as both parties are mobilizing to influence how maps for Congress and state legislatures are drawn after the 2020 census.
Chief Justice John G. Roberts Jr. expressed concern Tuesday that the Supreme Court could risk its reputation if it allowed courts to decide partisan gerrymandering cases with a complex formula, since “an intelligent man on the street” is going to say the justices preferred one party over the other.
“We would have to decide in every single case whether Democrats win or Republicans win,” Roberts said. “And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
Justice Neil Gorsuch said the lack of a clear formula for how to avoid potential partisan gerrymandering lawsuits when drawing political maps “doesn’t seem fair to the states.”
Justice Stephen G. Breyer proposed a five-part inquiry for courts to follow in such cases, while Justice Elena Kagan suggested judges can use the same techniques that states do when drawing the maps for partisan advantage.
Justice Ruth Bader Ginsburg questioned what will happen if partisan gerrymandering becomes so extreme that voters don’t think their votes count. “What becomes of the precious right to vote?” Ginsburg said.
The attorney for Wisconsin, Misha Tseytlin, told the justices that allowing courts to hear partisan gerrymandering claims would cause a “redistricting revolution” of litigation across the country.
Tseytlin said the voters in this case were using “scare tactics” about the future of democracy, since under their own formula the amount of partisan gerrymandering was worse in 1972 than 2014. Of the 17 worst partisan maps identified by the voters’ expert, he said, 10 were drawn by a court or through a process that involved both parties.
The court will decide the case, Gill v. Whitford, before the end of the term in June.