Today, the Supreme Court heard argument in Gill v. Whitford. The Court seems as divided as ever, and the ultimate outcome still rests in Justice Kennedy’s unpredictable hands. Yet, oral argument revealed something else: litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.
As far as predictions go, guessing where Justice Kennedy will land remains difficult, but the conservative bloc on the Court previewed the outline of an opinion that it surely hopes Kennedy will join. Their two key arguments seem tailored to Kennedy: (1) the claim is not sufficiently rooted in the Constitution, and (2) intervention would threaten the Court’s institutional integrity and exceed its constitutional role.
Chief Justice Roberts called the efficiency gap “gobbledygook” (a label eyebrow-raisingly endorsed by Justice Breyer); argued that a ruling “based on the fact that EG was greater than 7 percent” doesn’t “sound like language in the Constitution”; and aired the concern that “the intelligent man on the street” would think that the EG explanation was “a bunch of baloney” and would instead believe that judicial cases were being decided based on the Justices’ own partisan preferences, causing “very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.” Justice Alito joined the fray with a framing sure to irritate young scholars everywhere: “In 2014, a young researcher publishes a paper . . . [saying] I have discovered the Rosetta stone and it’s . . . the efficiency gap. And then a year later you bring this suit and you say: There it is, that is the constitutional standard. . . . [A]fter 200 years, it’s been finally discovered.”
Some of this is misleading: the plaintiffs did not claim on appeal that the efficiency gap should be dispositive. Justice Gorsuch took on this point in turn, observing that the district court “didn’t rely on [the] efficiency gap entirely” but instead relied on a range of measures of partisan asymmetry. Likening the court’s effects analysis to his own steak rub (including “a pinch of this, a pinch of that,” and a touch of the Justice’s favored turmeric), Gorsuch lamented that an unpredictable mix of tests “doesn’t seem very fair to the states” who must comply with whatever law the Supreme Court announces. In perhaps one of the morning’s more loaded questions, the Justice then asked plaintiffs, “What is it that you want us to constitutionalize?”
While it’s fair to point out that the horse may be out of the barn when it comes to fears about politicizing the Supreme Court or losing the trust of voters, the credibility of the Court still matters to the long-term health of the country and these arguments only need to win over one voter: Kennedy. And Justice Kennedy is notoriously sensitive to the institutional role of the Court in gerrymandering cases. (Indeed, because Roberts, Alito, and Gorsuch so vigorously pressed this line of inquiry, Kennedy’s silence during the exchanges may not be as revealing as one might hope.)
Nonetheless, some interesting areas of consensus arose in the Supreme Court today. As I argue in an essay published today (with many thanks to the team at the Cardozo Law Review de novo), the Court could go a long way towards improving the clarity, coherency, and consistency of its case law (and enhancing the institutional integrity of the courts and state legislatures) by affirming in Gill v. Whitford and reversing in Harris v. Cooper based on some of today’s rare points of agreement.
Perhaps the most powerful point of agreement came in response to Justice Kennedy’s revival of his hypothetical from Vieth: “Suppose a . . . state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to . . . have a maximum number of votes for party X or party Y. What result?” After even Justice Alito acknowledged that “you cannot have a law that says draw maps to favor one party or the other,” the defendants and intervenors conceded that such a law would be unconstitutional:
MS. MURPHY: I think that that would be better thought of probably as an equal protection violation, but you could think of it . . . as a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure.
MR. TSEYTLIN: A facially discriminatory law in a state would violate the First Amendment because it would stigmatize that party.
These concessions matter because they reflect a broad consensus on a key issue underlying many questions raised today. Like the not-so-hypothetical facially partisan redistricting criteria adopted by North Carolina in Harris v. Cooper, Kennedy’s statute doesn’t require any showing of effect to be constitutionally troubling. Rather, by using a facial category, such a law forces states to answer whether partisan advantage is a legitimate government purpose at all.
It is not.
Both the defendants and intervenors attempted to distinguish their case (and turn the tables back on the Court) by contending that the Court’s opinions say that “there will always be partisan intent” in redistricting. But not only does this mischaracterize the Court’s prior case law, it is not even a coherent response on its own terms: if partisan intent or partisan government purpose is constitutionally legitimate, then the defendants and intervenors should have argued that Justice Kennedy’s hypothetical statute would survive, not fail.
As the district court noted in its opinion, there is a difference between an “intent to act for political purposes” (which the Supreme Court has upheld), and an “intent to make the political system systematically unresponsive to a particular segment of the voters based on their political preference” (which the Supreme Court has not upheld, and which the Court repeatedly condemned in its early redistricting decisions). If one accepts this distinction between types of intent, many of the objections raised today fall away.
- Worried about “false positives” from symmetry metrics (from, for example, commission-drawn maps or court-drawn maps)? The absence of invidious partisan intent means that such a claim would fail. The constitutional problem isn’t that any particular voter in any particular district faces poor odds; the constitutional problem arises when a district is designed to give particular voters poor odds.
- Worried about explaining the outcome of court cases to the average man or woman on the street? Tell them that the Court overturned a law because the State classified citizens and/or suppressed citizens’ right to vote in an unconstitutional attempt to preordain the victory of state-favored candidates. Ask the man or woman on the street how they feel about the Court then, and you’re likely to hear one of two responses: “Finally!” or “Wait, legislators were allowed to do that? How was that ever constitutional?”
- Worried about the Court’s ability to distinguish between legitimate state interests (such as enhancing competitiveness or pursuing proportionality) and illegitimate state interests (such as maximizing advantage)? Perhaps take a look at racial gerrymandering law, which distinguishes between using race to preserve electoral opportunities (legitimate) and using race to entrench electoral advantages (illegitimate), as Justice Ginsburg reiterated today.
Indeed, in discussing both standing and the merits, the important parallels between racial gerrymandering law and political gerrymandering law were on full display today. Kennedy’s “overriding concern” language seems uncannily similar to the formulation used in racial sorting case law, and Gorsuch’s supposedly troubling “turmeric standard” goes by a more well-known name in constitutional racial dilution cases: the totality of circumstances. This standard—like any spice rub—may vary a bit from batch to batch and set-of-facts to set-of-facts.
Nor would following these routine, black-letter principles of constitutional law threaten to plunge the Court headlong into any kind of institutional crisis. Most of the troubling questions posed today (“Why EG > 7%?”) were premised on the dangers the Court might face under some kind of effects-only standard, which—standing alone—might reasonably seem divorced from the constitutional roots of the violation. By refocusing on the constitutional illegitimacy of partisan voter suppression (as opposed to partisan voter persuasion), the various effects tests set out by the plaintiffs and the court below need not individually carry so much weight in the analysis. As with constitutional racial vote dilution cases, the intent element of a claim is where plaintiffs will often flounder—and it is the causal connection of invidious intent to an otherwise permissible redistricting decision or action that makes the resulting effect unconstitutional.
The objection to all of this is, of course, that most or all politicians try to suppress their opponents when redistricting, and so an intent requirement isn’t a realistic barrier to a claim. But this gets the institutional role of the Court and the progression of history backwards. The behavior of legislators must evolve to satisfy what the Constitution demands. The Constitution does not meter its demands to match the Court’s low expectations of legislators. The Court did not hold racial suppression to be legitimate simply because many officeholders were openly racist and so a dilution claim was “unrealistic.” The Court stated what the Constitution required, and the floor statements, districting decisions, and legislative conduct evolved to try and avoid the new claims.
Nowadays, many legislators gerrymander (racially and politically) in order to achieve partisan ends. To claim that this is the natural and unavoidable state of affairs is to ignore the Court’s own role in shaping that state of affairs and the Court’s duty to prevent the rampant and open violation of voters’ constitutional rights.
Would recognizing the illegitimacy of invidious partisan intent eliminate all legislative attempts to pursue electoral advantages? Of course not. But one need not indulge Pollyannaish notions about the limits of judicial intervention to believe that political claims would—like racial claims—mitigate the frequency, cultural acceptance, and impact of such odious behavior. “[E]ven legislators unarmed with political data and mapping software will have an instinctual sense of where their support lies and may be tempted to nudge boundaries in their favor.” Proof of intent and effect may be difficult to cobble together in such instances, and minor transgressions are likely to go undetected and unvindicated. But in such a world, the mere existence of a constitutional claim still acts as its own constraint on unlawful legislative behavior, forcing legislators to justify their decisions to the public on neutral and legitimate bases and encouraging legislative majorities to avoid overreaching for fear of losing in court.
This may seem like new territory, but the basic constitutional principles found in racial gerrymandering law apply with equal force in the case now pending before the Court. Waiting on just the other side of Kennedy’s hypothetical is a clear logical progression: invidious partisan intent is unconstitutional; legislators here acted with such invidious intent; and voters’ ability-to-elect was negatively impacted because of the government’s targeting for suppression.
A new claim (or claims) might result in a fair number of plans being struck down initially as legislators adapt to new norms and expectations, but once the state of the law is settled the explanation for “the intelligent man on the street” becomes simple. No gobbledygook, no baloney, and only a touch of turmeric. That’s an outcome that would be good for voters and the Court’s reputation.