SCOTUS takes up partisan gerrymandering

So much coverage on this potentially ground-breaking and earth-shaking case. Here’s the Washington Post:

Opponents of political gerrymandering had reason for optimism at the Supreme Court on Tuesday, with Justice Anthony M. Kennedy, the likely swing vote, appearing more in sync with liberal colleagues who seemed convinced that a legislative map can be so infected with political bias that it violates the Constitution.

But it’s what Kennedy didn’t say that could determine whether the court, for the first time, strikes down a legislative map because of extreme partisan gerrymandering. While he has previously expressed concerns about the political mapmaking practice, he has yet to endorse a way of determining when gerrymandering is excessive, and Kennedy give no sign at oral arguments Tuesday that he had found one.

In a case from Wisconsin that could reshape the way American elections are conducted, the Supreme Court heard from challengers that it was the “only institution in the United States” that could prevent a coming wave of extreme partisan gerrymandering that would distort the basic structure of democracy.

“Politicians are never going to fix gerrymandering,” said Paul M. Smith, representing Democratic voters who challenged a 2011 redistricting plan drawn by Wisconsin’s ruling Republicans. “They like gerrymandering.”

Even conservative justices skeptical of Smith’s argument seemed to agree that it was unsavory for members of the party in power to draw legislative districts to protect themselves and their own, and make it hard for opponents to ever gain power.

“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr. “But if we are going to impose a standard on the courts, it has to be something that’s manageable.”

Finding a test that courts could use to determine when political favoritism had become too great — the “Rosetta Stone,” Alito called it — has always been the hurdle. Kennedy said as much the last time the court examined the issue, in 2004.

If anything, Kennedy seemed more convinced this time around that the courts have a role in finding that partisan gerrymandering can be so extreme as to be unconstitutional.

He pressed lawyers for the state and its legislative leaders about whether it would be unconstitutional for a state to undertake the redistricting process by forthrightly saying it intended to favor one party over another.

Erin Murphy, representing the legislative leaders, hesitated and said that was not the case in Wisconsin.

Kennedy was undeterred. “I’d like the answer to the question,” he said.

Murphy and the state’s lawyer, Solicitor General Misha Tseytlin, agreed that would be unconstitutional.

See here, here, and here for some background. Basically all the coverage was focused on Justice Kennedy, who is not only our supreme overlord the main swing vote in the chamber but also who had suggested that a partisan gerrymander could be illegal if there were a good, objective standard to determine it. That’s what this case is about, and it seems likely that if this isn’t where he draws a line, there isn’t a line he’ll be willing to draw. This case is about Wisconsin, but if SCOTUS sides with the plaintiffs it would surely have a broad impact, as many other purple or even blue states – Florida, Pennsylvania, Michigan, Ohio, Virginia, North Carolina – have similarly extreme gerrymanders in them. We’ll know by the spring. SCOTUSBlog, the NYT, Rick Hasen, Ari Berman, Kevin Drum, Mark Joseph Stern, Dahlia Lithwick, and ThinkProgress have more.

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