Columns » Jay Barth

Kennedy's last chance

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It all goes back over 200 years ago when a state legislative districting map created by Massachusetts Gov. Elbridge Gerry was criticized for its salamander shape that provided a partisan advantage for Gerry's fellow Democratic-Republicans. The controversy over the redistricting was key to Gerry's defeat by a Federalist opponent in the fall of 1812. Now with high-powered mapping software and gobs of data about voters, "gerrymandering" is more vibrant than ever.

In just a few weeks, the U.S. Supreme Court will consider the issue once again in Gill v. Whitford, a case from Wisconsin. A lower court found that Wisconsin's Republicans created an unconstitutional advantage for their party in state legislative districting by "packing" Democrats into certain districts and then "cracking" other Democratic-leaning areas across other districts.

While the issue of partisan gerrymandering has been at the court on a regular basis across recent decades, the Wisconsin case is vital for two related reasons. It is almost assuredly the last time Anthony Kennedy, the justice most engaged and most consequential on the topic, will be on the court to consider whether it is an appropriate issue for judges to decide. Moreover, the filings in the new case speak directly to Kennedy by providing him an objective standard to employ in determining whether a state has been driven too much by partisanship in district line drawing.

When gerrymandering occurs for partisan purposes, the Supreme Court has traditionally viewed it as a "political question" not appropriate for judicial remedy. After a slight majority on the Supreme Court ruled in a 1986 case that such cases were not inherently political questions and that persistent partisan districting might become an equal protections issue, the federal courts failed to establish a standard for determining unconstitutional inequities to be present in such districting cases in the years that followed. Most recently, in Vieth v. Jubelirer, a 2004 Pennsylvania case, a four-justice conservative plurality on the court said that no standard for judging the propriety of line-drawing was available and that the court should permanently deem them political questions.

As has been typical for much of his time on the court, Kennedy was the man in the middle. After chastising the Pennsylvania legislators for crossing the line of what is appropriate in a healthy democracy, Kennedy agreed that there was currently no standard to employ in deciding whether such a line had truly been violated. However, Kennedy was not willing to throw in the towel on the issue, concluding, "If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief."

Since the 2004 decision, advocates of reducing the role of partisanship in district-line drawing have gone down two different paths. Seeing no remedy from the courts, voting rights activists concerned about the anti-democratic ramifications of partisan (and incumbent-protecting) districting plans have increasingly turned their attention to changing the process through which districting decisions are made, with a focus on creating truly independent bodies across the states. Redistricting reform has become the latest focus of former California Gov. Arnold Schwarzenegger's energies, and other new advocacy efforts have developed across the nation. In Arkansas, a state where direct democracy provides an outlet for reform, the possibility of creating such a commission at the ballot box remains alive.

The second path has been a search for a standard that would make the Supreme Court — that is, Justice Kennedy — more comfortable with making districts drawn with overwhelming partisan skews subject to equal protections analysis. The advocates who brought forward the Wisconsin challenge argue that the redistricting plan there violates a new, objective measure called the "efficiency gap." The efficiency gap measures "wasted votes" (those votes either unnecessary for a district's winner to win combined with those votes cast for losing candidates); the more such wasted votes a party has in a given state, the greater their disadvantage in redistricting according to the efficiency gap. Critics of the measure argue that there will always be inefficiencies in any system of representative democracy based on geography and ask how much inefficiency is really too much. Others, however, believe that it is just the sort of objective measure that could be used in developing a judicial test, not unlike the mathematics employed in bringing the "one person, one vote" standard in place since the 1960s to life.

The high court will hear Gill v. Whitford on Oct. 3. The composition of the Supreme Court has changed since the 2004 Pennsylvania case, but the numbers on redistricting issues seem constant, with Kennedy very much in the middle. Whether the "efficiency gap" passes the Kennedy taste test may determine the direction of this fundamentally important area of the law and politics. The energy around reducing the power for politicians to choose the districts in which they run for office will not dissipate no matter the Court's decision in Gill v. Whitford. Polling shows overwhelming percentages of the American public favor shifts to truly nonpartisan processes. The question the Supreme Court will resolve is whether movement on the issue will come from the courts or through activism across the states.

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