Looking to Justice Kennedy in Gill

OCTOBER 2017 TERM

The briefs have been filed and the arguments heard in Gill v. Whitford, the blockbuster partisan gerrymandering case now before the U.S. Supreme Court. Whitford will decide, probably definitively, if courts can ever limit the currently unlimited power of parties and politicians to manipulate voter districting to their advantage, even to the point of undermining the constitutional rights of voters and the popular legitimacy of our elections.

The outcome of Whitford will likely turn on the decision of a single justice.

Anthony Kennedy has been leading a divided court into the "political thicket" of partisan gerrymandering. He has done so warily, with eyes set both on the fundamentally anti-democratic effects of gerrymanders and on the challenge of finding workable, politically-neutral standards judges might use to define and delimit the partisan bias in gerrymandered plans.

Kennedy's expected deciding vote in Whitford will either upend two centuries of judicial deference and inaction in this area, or it will extend indefinitely a hands-off policy that in recent years has given legal cover, and a green light, to partisan gerrymanders of unprecedented aggression and effectiveness.

Partisan gerrymanders of recent vintage, like the Wisconsin gerrymander at issue in Whitford, are not your father's partisan gerrymanders. They are gerrymanders on steroids, capable of converting a minority of statewide votes into supermajorities of state legislative or congressional seats, and of doing so reliably in every election during the 10-year life of the gerrymandered plan.

Increasing partisanship in voter districting has been fueled by our polarized politics and by new enabling technologies. In the three decades since the Supreme Court first began taking stock of partisan gerrymanders, advances in mapmaking software and powerful new database tools have greatly enhanced the ability of pols and mapmakers to model and manipulate electorates.

The conspicuous success of aggressive redistricting practices in recent years, particularly on the part of Republicans as they have gerrymandered to the hilt in several swing states (including Wisconsin), has intensified interest in a constitutional check for partisan gerrymanders.

The Supreme Court has said that partisan gerrymanders violate the constitutional rights of disfavored voters by undermining their legal equality under the 14th Amendment and/or their right to assemble freely and vote under the First Amendment -- when the partisan bias in the gerrymander is identifiably excessive.

It is the "excessive" part that has beguiled the high court.

How should one define and measure the partisan bias in a voter plan? How much bias is too much bias? The precursor question being whether judges should be answering such political questions at all -- that is, whether such matters are justiciable.

The search for a legal yardstick to measure partisan bias has divided the Supreme Court and disabled it from acting, even in cases where all the justices seemed able to eye-ball excesses that violated the Constitution.

The table was set for Whitford the last time the issue of partisan gerrymandering was squarely before the Supreme Court, in 2004 in the case of Vieth v. Jubilirer, involving an extremely biased Republican gerrymander of congressional districts in Pennsylvania. In Vieth, the nine justices divided 4-4-1 on the justiciable standard issue.

Four of the conservatives would defer to the political branches and ruled out any justiciable standard categorically. The four liberals were aligned behind a justiciable standard, though not necessarily the simplistic "majoritarian" standard argued for in Vieth.

As for Kennedy, he was sure no workable standard was before the court and he agreed with the other conservatives that the justices thus were not equipped to invalidate Pennsylvania's plan.

But Kennedy was not ready to close the door completely on a justiciable standard, noting the fundamental importance of the constitutional rights involved and the potential that an adequate standard may yet emerge. Seeing "both a threat and a promise" in the new science and technology of electoral modeling, Kennedy left open the possibility that technology and the social sciences may "produce new methods of analysis .... that would facilitate court efforts to identify and remedy" excessively biased gerrymanders, and in that event, "courts should be prepared to order relief."

In the years since Vieth, social scientists and election law attorneys have risen to Kennedy's challenge. The question of a judicially manageable, politically neutral standard to evaluate partisan bias in gerrymanders became one of the most studied issues in political science.

Consensus formed around the concept of "partisan symmetry." Partisan symmetry is the idea that a voting plan should translate the voter support of competing parties into election outcomes more or less even-handedly. A voter plan that translates a 55 percent statewide Republican vote into 60 percent of seats won by Republicans is said to be in symmetry if that same plan would translate a 55 percent statewide Democratic vote into roughly 60 percent of seats won by Democrats. Striking asymmetries would indicate bias.

Various methods and metrics have been developed to measure a districting plan's adherence to the partisan symmetry standard, including the intuitively appealing "efficiency gap" measure developed by San Francisco political scientist Eric McGhee that is playing a leading role in the Whitford case.

The several different methods and metrics developed since Vieth to evaluate partisan symmetry in voter plans have demonstrated a confidence-inspiring tendency to converge on the same results, particularly in the naturally competitive swing states like Wisconsin. They collectively have shown that the anti-democratic consequences of biased plans can be identified reliably and objectively, and that the discriminatory designs of the mapmakers can be reverse-engineered in a politically neutral way.

The social scientists seem to have caught up with the politicians, just as Kennedy anticipated. They have proven to be as adept at examining gerrymandered maps and unveiling their partisan bias as the political strategists have been at drawing those maps for partisan gain.

Whitford is the first case to come before the Supreme Court with a record that includes well-understood social scientific methodology custom-geared to the partisan bias bottleneck. We'll know by June if Justice Kennedy will find in that record a reward for his patience and a key to unlock a judicial solution to excessive partisan gerrymanders.