Supreme Court justice holds key vote on districts drawn to help parties

WASHINGTON — The building blocks of the American political system go on trial at the Supreme Court Tuesday, and it's not speculative to suggest that Justice Anthony Kennedy represents the deciding vote. He claimed that role 13 years ago.

The issue is whether state legislators can choose their voters, rather than the other way around, every 10 years by drawing election districts with partisan impunity. In 2004, four justices said yes, four no; Kennedy said maybe.

The result was another decade of partisan gerrymandering. Republicans capitalized in 2010 by gaining control of both houses in 25 states, which they used to draw districts that have favored their side ever since. In 2012, they won 53% of the vote but 72% of the House seats in states where they drew the lines.

Now comes a new case from Wisconsin, one of the most purple states in the 2016 presidential election. President Trump won the state by a single percentage point. But thanks to maps drawn by Republicans in 2011, the GOP emerged with a 64-35 advantage in the state Assembly and a 20-13 edge in the state Senate.

That partisan display, Justice Antonin Scalia wrote for the winning side in the 2004 case from Pennsylvania, isn't something the federal courts should fix. Kennedy agreed in that  specific case but issued a warning for the future.

"If courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow," he wrote.

Grow it has, and not only by Republicans. Democrats' redrawing of congressional district lines in Maryland has been challenged in another case pending at the Supreme Court. Republicans' line-drawing skills have prompted similar lawsuits in North Carolina and Pennsylvania.

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Unlike past challenges to partisan gerrymandering, the Wisconsin case also comes with suggestions for ways to measure the burden placed on voters — in this case Democrats — who were purposefully scattered among some state legislative districts and packed into others to minimize their clout. Kennedy basically asked for those suggestions 13 years ago.

"That no such standard has emerged in this case should not be taken to prove that none will emerge in the future," he said. "If workable standards do emerge to measure these burdens ... courts should be prepared to order relief."

Quoting Kennedy, to Kennedy

When lawyers for the voters challenging Wisconsin's maps filed their main Supreme Court brief last month, they quoted Kennedy 41 times, beginning with their opening paragraph: Partisan maps "penalize citizens" because of their "association with a political party, or their expression of political views," he said in 2004.

They have reason to be hopeful. In the past, Kennedy has lamented political polarization and gridlock — conditions made worse by the election of hard-right and hard-left partisans who disdain comity and compromise. 

Two years ago, he cast the deciding vote in letting voters take Arizona's redistricting process away from the legislature and assign it to an independent commission, such as the one Kennedy's home state of California already had.

Cornell Law School professor Michael Dorf, a former Kennedy law clerk, says the justice isn't shy about courts weighing in on political matters.

"He is pulled to the idea that challenges to the machinery of democracy ... should be justiciable," Dorf says. And Kennedy most likely sees partisan gerrymandering as "a kind of cheating. It think it offends his sense of fair play."

On the other hand, the 81-year-old justice lamented in 2013 that the courts should not have to decide major issues best left to the political branches. 

"A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” he said.

A 'political thicket'

The question of unelected judges making political decisions has confounded the court for decades. In a 1946 opinion on whether political districts should be roughly equal in population, Justice Felix Frankfurter said courts "ought not to enter this political thicket" and instead should rely on Congress or state legislatures to fix what's broken. 

Only in the 1960s did Chief Justice Earl Warren write the final chapter in that debate, ruling that state legislative districts as well as those for Congress must achieve the principle of one person, one vote.

But the question in gerrymandering cases is different: It's not about the vote itself but its relative weight in picking winners and losers. Challengers in Wisconsin contend that when Democrats are packed into the districts their candidates win and sprinkled into a greater number of districts their candidates lose, the system is rigged against them.

A federal district court ruled 2-1 last year that those districts discriminated against Democratic voters "by impeding their ability to translate their votes into legislative seats." It demanded that the legislature draw new district lines by this November for use next year, but the Supreme Court — with Kennedy's approval — blocked that requirement by a 5-4 vote.

Arguing for Wisconsin Tuesday will be Solicitor General Misha Tseytlin — another of Kennedy's former law clerks. His brief — which quotes Kennedy 33 times — refers to gerrymandering as a "centuries-old status quo" and warns that any ruling against it would have to rely on one or more of the mathematical formulas devised by opponents. The result, he says, would be that in many states, "any displeased voter ... can file a lawsuit in federal court."

Daniel Epps, an associate professor at Washington University School of Law and another of Kennedy's former law clerks, says his former boss's search for the right balance between voting rights and judicial restraint was on display in the 2004 case.

“You can sort of see him struggling with it," Epps says. "And now is going to be the time when he has to come up with an answer.”