Kennedy's Vote Is in Play on Voting Maps Warped by Politics

[DonViejo]

By ADAM LIPTAK and MICHAEL D. SHEAR OCT. 3, 2017

WASHINGTON — Justice Anthony M. Kennedy has long been troubled by extreme partisan gerrymandering, where the party in power draws voting districts to give itself a lopsided advantage in elections. But he has never found a satisfactory way to determine when voting maps are so warped by politics that they cross a constitutional line.

After spirited Supreme Court arguments on Tuesday, there was reason to think Justice Kennedy may be ready to join the court’s more liberal members in a groundbreaking decision that could reshape American democracy by letting courts determine when lawmakers have gone too far.

Justice Kennedy asked skeptical questions of lawyers defending a Wisconsin legislative map that gave Republicans many more seats in the State Assembly than their statewide vote tallies would have predicted. He asked no questions of the lawyer representing the Democratic voters challenging the map.

There was something like consensus among the justices that voting maps drawn by politicians to give advantage to their parties are an unattractive feature of American democracy. But the justices appeared split about whether the court could find a standard for determining when the practice was unconstitutional.

“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr., “but if we are going to impose a standard on the courts, it has to be something that’s manageable.”

more
https://www.nytimes.com/2017/10/03/us/politics/gerrymandering-supreme-court-wisconsin.html

[Gothmog]

1. With Justice Kennedy Seriously Considering Being the 5th Vote to Rein in Partisan Gerrymandering, Th

From Prof. Hasen http://electionlawblog.org/?p=95181

Before oral argument I explained that the vote in Gill v. Whitford is likely to come down to Justice Kennedy, with the Court’s four liberal Justices voting to rein in partisan gerrymandering and the four conservatives voting against it. From today’s oral argument transcript, this dynamic appears to be true (apart from Justice Thomas, who did not speak, but who joined Justice Scalia’s plurality opinion in Vieth in 2004 arguing that partisan gerrymandering claims are non-justiciable). Today, Justices Breyer Ginsburg, Kagan, Sotomayor left no doubt they think courts should be policing in this area, and the Chief Justice, Justice Alito, and Justice Gorsuch thought they should not (either because of a lack of standing, or a lack of manageable standards, or because it would impinge on the legitimacy of the Court—more on that below).

Justice Kennedy asked questions only to those defending Wisconsin’s gerrymander, and the questions suggested he believed, as he suggested in Vieth, that Wisconsin’s redistricting plan violated the First Amendment associational rights of Democrats. If he was concerned about finding a “judicially manageable” test to separate permissible from impermissible consideration of party (as he said he was in Vieth), he gave no inkling of that concern in questions today. While he is no sure bet to vote this way at the end—it is hard to read tea leaves from oral argument and have confidence of how he will vote—the questions on standing seemed to suggest the conservatives were looking for a way to get Kennedy’s vote other than on the merits.

If Kennedy does vote with the liberals, it could easily follow the path set out by Paul Smith, who did an excellent job arguing for the plaintiffs (all the attorneys did an excellent job in this case and the Justices were clearly prepared): intent, effect (measured by partisan asymmetry/bias) and justification, with the threshold being that a plan was enacted by a one-party legislature over the objections of the other party. I don’t expect to see the efficiency gap as the holy grail, especially because it is likely to come under sustained attack by Justice Alito, who has never been a fan of courts getting involved even in the one person, one vote cases.