How Anthony Kennedy May Kill the Gerrymander With A Novel Approach to Democracy

Voters head into an Arlington, Virginia, fire station to vote on November 8, 2016. Walter Olson writes that Wednesday’s Supreme Court ruling clarifies that when there is other evidence of racial motivation, the gerrymandering process does not escape Equal Protection Clause scrutiny just because the shape of voting districts appears normal and they do not visibly violate other sound principles of districting. Zach Gibson/Getty

Has Supreme Court Justice Anthony Kennedy found a new way to strike down extreme partisan gerrymandering?

Kennedy, who has been the swing vote on a wide variety of SCOTUS rulings, staked out a novel approach in this week's High Court argument over how politicians draw legislative lines to favor themselves, focusing the partisan issue on voters' right to associate instead of the traditional "one-man, one-vote" argument that the liberal wing of the court favors.

"Suppose the Court ... decided that this is a First Amendment issue, not an equal protection issue," Kennedy asked at the start of oral arguments in Gill v. Whitford on Tuesday, a case that will decide whether Wisconsin's state legislative districts were unconstitutionally gerrymandered in favor of Republicans.

The facts in the case are not in dispute. Following the 2010 Census, the Wisconsin Legislature — controlled by Republicans — drew new district lines as required by the Constitution. But those lines were drawn in such a way that Democrats have not won more than 39 of the 99 seats in any of the last three elections, despite carrying a majority of the overall votes cast.

A registered Democrat, retired University of Wisconsin Law School professor William Whitford, sued, claiming his vote as a Democrat didn't count as much as a vote by a Republican because the district lines watered down his party's power.

Gill vs. Whitford is the first case of its kind to reach the Supreme Court in 30 years, after a panel of three federal judges at a district court found the Wisconsin map violated First and Fourteenth amendment rights.

Gerrymandering has woven into the American political system since 1812 when Massachusetts redrew the district lines to favor Governor Elbridge Gerry's Democratic-Republican Party over the Federalists. Since then, it has been used to dilute the opposition's votes. Wording in the law leaves wiggle room to create districts that are dramatically non-compact or squiggle in different directions yet still span wide geographic areas designed to reduce one population's voting strength.

One of the most egregious examples of gerrymandering is North Carolina's Twelfth congressional district, which snaked through most of the state to consolidate Democratic-leaning black voters into one district. And the lines of Pennsylvania's Seventh congressional district were also drawn in a way that favors Republicans.

Today #SCOTUS tackles partisan gerrymandering in one of term's most consequential cases; @ahoweblogger previews Gill

— SCOTUSblog (@SCOTUSblog) October 3, 2017

Most past gerrymandering decisions have been based on the Fourteenth Amendment's equal protection guarantee, but Gill vs. Whitford reached the Supreme Court after a district court ruled that the Wisconsin map watered down the voting rights of citizens on based on their party affiliation — in other words, the district lines violated voters' First Amendment right to free association.

It appears Kennedy is leaning towards this notion that the government's ability to punish voters' choice to be a member of a particular party — to freely association, if you will, with fellow Democrats — would violate a fundamental freedom.

Kennedy's line of questioning put him, again, in the middle. Liberals, including Ruth Bader Ginsburg and Sonia Sotomayor, suggested that they favor the equal protection clause of the Fourteen Amendment.

Meanwhile, Neil Gorsuch, presenting a conservative argument, suggested that the Constitution does not give the Supreme Court the authority to intervene in matters of redistricting at all.

"Maybe we ought to be cautious about stepping in here," the Trump-appointed justice asked.

Smith responded: "Well, I don't think there's anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government. That's what the Court has been doing."

Ginsburg then interjected, "Where did 'one-person-one-vote' come from?" referring to the Fourteenth Amendment.

Politicians on both sides of the aisle have been permitted to pick their voters. It has to stop, we need #FairMaps

— Voter Participation Center (@VoterCenter) September 29, 2017

If Kennedy joins the liberal justices in striking down the Wisconsin map, the precedent could affect about one-third of all districts drawn for Congress and state legislatures.

Depending on the remedy that the court requires, the reverberations could be significant for redistricting after the 2020 census. In one scenario, legislators might be forced to cede district map lines to impartial panels.

"When any political party tries to rig the system, it's unfair to voters," the Voter Participation Center's founder and president Page Gardner told Newsweek. "The Supreme Court is the only institution that can act decisively on behalf of our democracy and stem the tide of extreme partisan gerrymandering."