John Roberts, Anthony Kennedy cast doubt on Supreme Court’s ability to resolve gerrymandering dispute

Chief Justice John Roberts and Justice Anthony Kennedy raised questions Tuesday about the Supreme Court’s ability to resolve a blockbuster political gerrymandering dispute.

Roberts expressed concern that any decision in Gill v. Whitford, a political gerrymandering case from Wisconsin, would “cause very serious harm to the decisions of the court in the eyes of this country.”

Roberts said if the challenge to Wisconsin’s voting map were allowed to proceed, many similar cases could come that could yield decisions that voters would view as motivated by the justices to help one political candidate.

Both Kennedy and Roberts appeared concerned about whether the court had any ability to hear Gill v. Whitford before making a decision about whether to create a standard about how to resolve political gerrymandering disputes. The court has never thrown out a politically gerrymandered district, as the Constitution does not explicitly say how districts should be drawn. Certain laws such as the Voting Rights Act require that districts be gerrymandered to ensure minority representation in Congress.

The challengers in Gill v. Whitford hope the Supreme Court will create some standard for addressing political gerrymandering and have suggested the standard rely on demonstrating that redistricting maps were drawn with a partisan motivation, fostered a large and lasting partisan effect, and appeared unjustified by other factors used to draw districts after the census every 10 years.

An earlier political gerrymandering case, Vieth v. Jubelirer, featured no majority opinion from the Supreme Court, resulting in a 4-4 split with Kennedy writing a concurrence to the late Justice Antonin Scalia’s controlling opinion that indicated that while Kennedy found no standard to resolve the issue then, it was possible that the high court could do so in the future.

It is not clear if Kennedy thinks the high court is any closer to finding such a standard this year. Kennedy on Tuesday questioned whether a voter, in this case William Whitford in Wisconsin, could bring a challenge to a statewide map from a single district. Kennedy noted that he thought there was “no case” that provided a precedent for Whitford to have standing in the case.

Both Justices Ruth Bader Ginsburg and Sonia Sotomayor, however, indicated they thought political gerrymandering was simply too big an issue to ignore. Ginsburg asked if one party is allowed to “stack” a state’s legislature, then what incentive exists for any voter to ever exercise the right to vote?

“What’s really behind all of this?” Ginsburg asked, hinting at her skepticism of Wisconsin Republican officials’ motivation.

Sotomayor similarly raised the possibility of a “stacked deck” and questioned whether allowing any amount of partisan advantage in drawing districts “helps democracy.”

Justice Stephen Breyer went a step further than his left-leaning colleagues and detailed his own proposed standard for how the judiciary should review political gerrymandering claims. Breyer suggested that the courts review whether one party controlled any redistricting under dispute and then look to determine whether there was partisan asymmetry, whether the map was an “extreme outlier,” and whether there was “any other justification” besides politics for the redistricting map.

Partisan asymmetry involves whether proportional representation exists between votes for a given political party and its representation in a state’s legislature. If one political party wins a majority of a state’s votes, but that vote count cannot result in the victorious party’s control of most of the state legislature’s seats up for grabs, such a result would not provide the proportional representation Breyer suggested.

“I suspect that that’s manageable, [but] I’m not positive,” Breyer said.

Breyer and Roberts later sparred about whether proportional representation was a “fair” concept worth including in any court-applied standard.

Justice Neil Gorsuch cast doubts on Breyer’s proposal and wondered what criteria states would need to know to “avoid litigation in every district in every state in America.”

Justice Samuel Alito appeared to share Gorsuch’s wish to evade a flood of gerrymandering litigation and questioned whether 2017 was the appropriate time for the justices to definitively rule on the issue.

“Gerrymandering is distasteful, but if we’re going to impose a standard on [the] courts, we need one that is manageable,” Alito said.

Justice Elena Kagan also raised questions about how the Supreme Court could create a standard without prompting litigation in every district. But Kagan appeared more offended by the Wisconsin maps than Alito and Gorsuch, which she said seemed to cross every “line” of propriety in redistricting.

How the high court chooses to resolve the case looks likely to turn on Kennedy, who frequently has provided the deciding vote.

The case drew a large public interest. Attendees for Tuesday’s oral arguments began lining up outside the Supreme Court around 4 a.m.

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