What’s really at stake?
There was a great deal of debate about various social science metrics which all point to Wisconsin legislators drawing some of the most unfair districts in the country for their own benefit. However, some justices drilled down on what is really at stake in this case. As Justice Ruth Bader Ginsburg put it, “the precious right to vote” is at the center of the dispute. Justice Sonia Sotomayor drove home the point about 30 minutes into the proceedings: “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?” Erin Murphy, attorney for the Wisconsin legislature, was given the unenviable task of defending the indefensible in response to Justice Sotomayor’s question. Unsurprisingly, she could not.
Justice Anthony Kennedy, whose views may be the key to the Court’s ultimate ruling, also produced a fascinating moment. He proposed a hypothetical in which a state constitution or state law required that a map be drawn for partisan advantage.
“If the state has a law or constitutional amendment that's saying all legitimate factors must be used in a way to favor party X or party Y, is that lawful?” Kennedy asked. Murphy conceded that such a law would likely violate both the First Amendment and the 14th Amendment’s equal protection clause.
This exchange begs the question why a law that explicitly requires partisan unfairness would be unconstitutional while a law proven to have the same intent and effect, even if its goal is not explicit, should be upheld.
Upcoming North Carolina cases
Justice Kennedy’s question also previews an upcoming pair of cases challenging North Carolina’s congressional map. A three-judge federal district court will hear Common Cause v. Rucho and League of Women Voters of North Carolina v. Rucho simultaneously in Greensboro, North Carolina starting October 16. Common Cause reminded the justices of the facts in North Carolina in its Gill v. Whitford amicus brief. In North Carolina, legislators made partisan advantage an explicit requirement when they drew a new congressional map last year to replace districts that had been ruled to be an unconstitutional racial gerrymander. They then bragged publicly about doing so. This is essentially the hypothetical Justice Kennedy proposed.
In addition, Justice Kennedy expressed concern about a plaintiff’s standing to sue in a statewide challenge like Gill v. Whitford as opposed to a challenge of individual districts during an exchange with Wisconsin Solicitor General Misha Tseytlin.
TSEYTLIN: "Now, the threshold matter, this Court should hold that federal courts lack jurisdiction to entertain statewide political gerrymandering challenges, leaving for another day the question of district-specific gerrymandering challenges."
JUSTICE KENNEDY: "I think it is true that there is no case that directly helps Respondents very strongly on the standing issue. You have a strong argument there."
Common Cause v. Rucho is both a statewide and district-specific challenge to North Carolina’s congressional map and includes individual plaintiffs from each of the state’s 13 districts, which could address Kennedy’s concerns about standing.
The fireworks outside the courtroom matched those inside of it. Citizens involved in the case, bipartisan elected officials, and civil rights leaders spoke at a rally organized by Common Cause, Represent.US, and the Center for American Progress on the courthouse steps. Arnold Schwarzenegger cited Congress’s 16% approval rating, which he said was lower than herpes and colonoscopies, and high reelection rate as evidence that gerrymandering is not serving our democracy well. A decision in this landmark case could come anytime between now and the end of June.