This morning, I stirred my green tea vigorously to see if it would reveal the Supreme Court’s opinion on two partisan gerrymandering cases that are soon to be released. The tea spilled, I scalded my lap, then wondered why any Decent American Patriot would sip tea while the nation awaits a decision of such historic significance. I then made a cup of coffee and resolved to give up fortune telling. So I won’t try and predict where the Court will come down on the constitutionality of partisan gerrymandering. However, I will offer some guideposts to help interested parties (see what I did there) understand the significance of the decision when it comes.
1. Is there a real decision?
It is always possible that SCOTUS decides to re-argue the points next session if there is serious fragmentation of opinion about what constitutional principles, if any, should govern partisan gerrymandering. Of course, that did not stop the Court from issuing a fragmented opinion in Vieth v Jubelirer, the decision that unleashed state legislatures to gerrymander without restraint in 2011. Or they could decide that plaintiffs in the first Wisconsin case, Gill, do not have standing because they were not harmed within a gerrymandered district. That outcome could have serious implications, and could depend on who writes the majority opinion.
2. Who writes the opinion?
While all eyes have been on Justice Kennedy as the decisive swing vote in these cases, Chief Justice Roberts is the only justice who has not yet written a majority opinion from this session, which makes it more likely that Roberts will be the author. The possibility of a Roberts opinion has led to speculation at Election Law Blog and other sites about the possibility that the Court will take a narrow, district-level approach, focusing on arguments such as those offered by Republican plaintiffs in the Maryland case, Benisek.
As has already been pointed out by Gill counsel Nick Stephanopoulos, this would be a misguided approach for SCOTUS to take if the goal is to conservatively reduce the number of applicable cases and thus restrain court intervention. Moreover, the logic of state-imposed harm on all voters of the targeted party is inescapable and would inevitably make its way back into legal arguments. As Justice Kennedy has acknowledged, it is the state that is imposing the inequity, and it is a state-level harm, in the sense that it is the number of seats denied the opposition party from all seats in the statewide districting plan that causes targeted voters (who voted for the opposition party) to suffer vote dilution.
An opinion that does the work that Kennedy and the liberals require, but is narrow enough for Roberts to be on board, will likely require more than a demonstration of intent to discriminate. Harm will have to be demonstrated empirically, with clear evidence that the relationship between party vote and seat shares has been intentionally manipulated to punish voters who favor the opposition party. And that takes us back to some of the fundamental scientific questions that gave rise to these cases in the first place.
3. What kind of rights are we talking about? Equal Protection? Free Speech and Association?
One of the most interesting aspects of these cases from the perspective of constitutional theory resides in the variety of ways that plaintiffs and lower courts have linked the harm of gerrymandering to constitutional protections. Traditionally, gerrymandering cases have used equal protection arguments, specifically the 14th Amendment, to protect voters from districting plans that don’t treat voters equally. Alternatively, Justice Kennedy specifically, and the Court more generally, has been more receptive to “free speech” arguments as of late, especially in campaign finance and other election law cases, so this has become a more popular strategy.
The basic claim behind this strategy is that a vote cast is a form of expressive association, such that diluting or suppressing the value of that act violates the 1st Amendment. There is considerable disagreement over the extent to which such claims are still implicitly dependent on the equal protection provided by the 14th Amendment, so it is certain that the Court’s response to these claims will shape future litigation and legislation.
4. Will the Court rely on a single metric to determine harm?
Almost certainly not, but the Court could set parameters and narrow the bounds of applicable cases by emphasizing that in the two cases in question, all of the empirical measures relied on by lower courts converged. That is, in the worst cases of gerrymandering, it doesn’t matter which metric is used, those for partisan bias, efficiency, and mean-median gaps will all show that a plan gives an asymmetric advantage to the voters of one party over another.
At the same time, the majority decision, or concurring opinions, could provide more support to some metrics over others. The efficiency gap is among the newer kids on the block and should receive a good deal of attention, but the model of asymmetry was developed over 20 years ago, and is still dominant in the field. Of greater interest for those following the election science is the degree to which the Court considers the constitutional implications of these different measures, which are significant. Specifically, as litigation and legislation moves forward, such arguments will be relevant for clarifying just what the constitution demands of our electoral systems, and how we can distinguish its bugs from its features.
5. How much is too much?
Again, it would be surprising for the Court to establish an empirical metric of “x percent.” Rather, a workable, manageable threshold would reflect both what is constitutionally required, but also respects judicial restraint.
This is why Maryland seems like an especially important case, in that a decision overturning that state’s Democratic gerrymander (the governing party manufactured an extra seat when they are already the dominant party) would provide a rather clear guideline, a one-seat principle. That is, if it can be shown, through whatever metrics, that the opposition party’s voters are effectively and reliably denied a minimum of a single seat as the result of an adopted plan, which is what would be required for vote dilution to occur, it would be grounds for overturning a districting plan.
If the Court can provide such guidance to lower courts, as to how much is too much inequality, that is as much as we can ask for. For the current situation is clearly too much, in the opinion of experts and citizens alike.